## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Luna , 2013 IL App (1st) 072253

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J UAN L UNA, De fenda

nt-Appellant.

District & N o. First District, F ourth Division Docke t No. 1-07-2253

Filed April 25, 2013

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 first deg ree murder for the shooting deaths of

seven employ ees of a fast-f ood restaur ant wa s upheld over his contentions that expert testimony that defe ndant’s latent fing erprint was found on a napkin found in the restaur ant should ha ve been excluded or

a Frye hear in g should have been held on the admissibili ty of the evidenc e, t h at d ef

ense counsel was ineffe ctive in failing to seek a Frye hear ing, since the DNA found at the scene was too small t o t es t for reliable testing, that Daubert should be adopted for assessing t h e admissibili ty of scienti fi c evidenc e, that the prosec utor prese nted improper co m m ents in closing argument, and that the denial of defe ndant’s motion to adm it o ut- o f

- c o u r t statements of two witnesses was an abuse of discre tion.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 02-CR-15430 (02); the Hon. Vince nt M. Gaug han, Judge, pr esiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Patricia Unsinn, Alan D. Goldberg
, and Kahtlee n M. Fly nn, all of State Appellate Def ender ’s Offic e, of Chicag o, for appellant.

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

. Spellberg
, Assistant St ate’ s Attorney , of counse l), for the People.

Panel J USTI CE EPS TEI N deliver ed the judgment of the c ourt, with opinion.
Presidin g J ustice L avin and J ustice Fitzge rald Smit h concur red in the judgme nt and opinion.

OP INION

¶ 1 J u an Luna and J ames Deg orski wer e charg ed with first deg ree murder fo r t h e 1 9 9 3 shooting deaths of seven people at a Br own’s Chicken restaur ant in Palatine, I ll i n o is. Following a sever ed jury trial in 2007, defe ndant Luna was found guilt y o f fi rst deg ree murder and sentenc ed to natura l life imprisonment. Def endant presse s sever al arguments on appea l: (1) the trial court should have excluded expert testimony that a latent print found on

a n ap kin matched defe ndant’s palm print, or the court should have g rante d defe ndant’ s reque st for a Frye hear ing, beca use the “contr oversy surrounding latent print identification” shows that the re levant scie ntific community does not g ener ally

acc ept the method used to match latent prints to known prints; (2) defe nse counsel was ineffe ctive for failing to move for a Frye hear ing, beca

use testing showed that the amount of DNA rec overe d from the crime

scene was less than 0.5 nanog rams, and obtaining a profile from such low amounts of DNA is not g ener ally acc epted within the rele vant scientific community ; (3 ) this court should discard Frye and adopt Daubert v. Merre ll Dow Pharmace uticals, Inc.
, 509 U.S. 573 (1993), fo r as s essing the admissibili ty of scientific evidenc e; (4) defe ndant was denied a fair trial beca use the prosec utor made improper comments during rebuttal closing argument; and (5) the trial court abused its discretion in denying defe ndant’s motion to admit two out-of-c ourt statements from Casey Sander and Todd Wakefield. For the rea sons that follow, we aff irm.

¶ 2 BA CKGROUND ¶ 3 In the ear ly morning of J anuar y 9, 1993, P al ati ne police office rs rec eived se parate repor ts that worke rs from a Palatine Br own’s Chicken had not returne d h o m e af t er their shifts. Upon enter ing the restaur ant, police found the bodies of seven persons, all of whom had been shot in the head. Richard Ehlenfe ldt and Thomas Mennes wer e found in the cooler

on the west side of the restaur ant. The other five, Ly nn Ehlenfe ldt, Gua dalupe Maldonado, Rico Solis
, Michae l Ca stro, and Marc us Nellsen, wer e found in the fre ezer on the east side of the re staurant. ¶ 4 At t h e trial, spanning sever al wee ks, dozens of witnesses testified for t h e S t at e an d

-2-defe ndant. We provide a brief overvie w of the rele vant testimony
, which we explore in more

detail, wher e nec essar

y , as par t of our ana ly sis.

¶ 5 I . Def endant’ s Statements ¶ 6 A. Eileen B akalla ¶ 7 Eileen Ba

kalla testified that on J anuar y 8, 1993, J ames Deg orski called and asked her to
meet him and defe ndant in the parking lot of a J ewe l g roce ry store in Carpen t er s v i l le, I llinois

. Ba

kalla was Deg orski’s close friend, and she knew defe ndant; they would visit at Deg orski’s house and smoke marijuana

. When she met them in the parking lot, Ba kalla saw Deg orski and defe ndant in defe ndant’s car , along with latex g loves and a canva s money bag

. The men g ot into Baka lla’s ca r, and as she drove them to her home, they told her they had robbed the Br own’s C hicken. At Ba kalla’s home, defe ndant and Deg orski split the m oney in the bag
, which Ba

kalla estimated at over $1,000. They g ave $50 to Ba kalla, which she said

was re pay ment for a loan she had g iven to Deg orski. The thre e smoked mar ijuana, re laxed for a few hours, and Ba

kalla drove d ef

en d an t b ack to his car

. Ba kalla and Deg orski then drove past the Br own’s Chicken restaur ant, wher e she saw numerous ambulance s and police

car s. Th e n ex t d ay , Ba

kalla met Deg orski at a car wash, wher e Deg orski “extensively clea ned” defe ndant’s car

. A few wee ks lat er , Ba kalla and defe ndant wer e at Deg orski’s house. De fenda

nt smil ed as he talked about slitting a lady ’s throat. ¶ 8 Ba

kalla testified that on November 25, 1995, a police office r investigating the murder s asked her to g o to the P alatine police station. She went with Deg orski and defenda nt, who had been an employ ee at the Br own’s Chicken. Ba kalla told a police office r that she was with Deg orski and def

endant at he r house on the night of the murders, and they found out a bout the murders the next morni n g. Ba k al l a testified that only some of that was true. Ba kalla admitted that, in exchang e for her testimony
, the State’s Attorney ’s office promised Ba kalla that she would not be prosec uted for “ obstruction of justice” or “conc ealment or acc essory afte r the fa ct.” The judge instructed the jury to view B akalla’ s testimony “with ca ution.”

¶ 9 B. Anne L ockett ¶ 10 Anne L ockett testified that in 1 9 9 1, when she was 17 and still in high school, she met defe ndant and B a

k a ll a th r o u gh Deg orski. Def

endant, Deg orski, and L ockett used to drink and smoke marijuana toge ther. L ockett, who used others drug s like PCP and L SD, started dating Deg orski in 1992 when she was 17. On J anuar y 7, 1993, she was admitted to For est Hospital afte r s h e at t empt ed suicide. A few day s afte r she was admitted, Deg orski called her at the hospital. L ockett testified that afte r the phone call, she watche d the evening news. The lead story was the B rown’s Chicke n murders. ¶ 11 Af

t er s h e wa s d i s ch arg ed from the hospital on J anuar y 25, 1993, L ockett we n t t o Deg orski’s house. Def

endant was there

. Deg orski asked L ockett if she wanted to know what happene d at Br own’s Chicken, and L ockett said y es. L ockett testified that “they” told her that
t h ey went to the Br own’s Chicken with pockets full of bullets. Deg orski had a .38-ca liber revolve r. They went in around closing and defe nd an t o rd ere d chicke n, which ang ere d Deg orski beca

use he was worrie d about leaving g rea sy fing er p ri n ts. L ockett testified that

-3-they told he r they put on glove s in the bathroom. The me n blocked the back exit door with

a we dg e so that no one c ould run out the bac k exit

. ¶ 12 L ocket t testified that both men admitted shooting the victims with Deg orski’s gun. At

one point, one of the Br own’s employ ees ran throug h the kitchen, jumped over the counter , and was shot. The y told he r one of the boy s who was left in the cooler had vomited F renc h fries befor e he died. Def

endant demonstrated how he cut the throat of “a woman who made him mad, something about the safe .” After war d, they clea

ned up an d disposed of their clothing, shoes, and the gun. Deg orski threatened to kill L ockett if she said any thing, and he told her that beca

use she had been in the hospital at the time, he was g oing to use Ba kalla as an alibi. ¶ 13 I n M ar ch 2002, L ockett eventually rec ounted t o a friend what Deg orski and def endant had told her. That same month, afte r the friend had g one to police, Serg eant Bill King of the Palatine police depar

tment contac t ed L ockett. L ockett admitted that she did not come forwa rd ea rlier, e ven whe n Martin B lack, a friend of hers, wa s arr ested for

the murder s. ¶ 14 L ockett testified that her drug and alcohol use continued until 2004, when she was sent to “detox” afte r arriving to work int ox icated. L ockett relapsed a y ear later, but, at the time of trial, she had been sober for one y ear

. She denied signific ant mem ory or cog nitive difficulties, but when she testified befor e the g rand jury
, L ockett rea d from a statement the
prosec utor’s off

ice ha d ty ped out.

¶ 15 C. Defe ndant’s Videota ped Statement ¶ 16 Following his arr est on May 16, 2002, defe ndant g ave a videotaped statement that he and Deg orski went to Br own’s Chicken to commit a robber y

. Assistant State’s Attorney Dar ren O’B rien testified that on May 17, 2002, he spoke with defe ndant, wh o af t er waiving his Miranda rig hts, ag ree d to give the statement. The statement wa s play ed for the jury

. ¶ 17 Def

endant state d that on J anuar y 8, 1993, he and D eg orski planned to rob the B rown’s Chicken in Palatine; they chose the restaur ant beca use defe ndant had worke d there and knew there was no alar

m. They decide d to g o there “at closing time like around 9 : 0 0 o ’c l ock” beca use fe wer people would be there and bec ause there would be money at that time since “eve ry body was doing their counts to make deposits f or the bank or just to count and leave

some in there in the safe .” At around 9 p.m., defe ndant and Deg orski drove to the restaur ant, parke d “on the north side of the building,” and then “wa lked by the west side of the building
to walk inside, by the west side, double side doors to walk in there .” Def endant order ed “four

or five piece s of chicke n,” and the two walked “on the west side of the building” to sit down at “the f irst booth nex t to the ga

rbag e ca n.” ¶ 18 Def

endant and Deg orski t h en p u t o n l atex g loves and decide d to g o ahea d with the robber y

. Def endant approa ched Rico Solis
, who was mopping the floor, and told him to g o to the back of the restaur ant. Deg orski fired a shot and told ever y one to g et on the floor. One employ ee tried to jump over the counter , and Deg orski shot him. Deg orski took the man into “the west side cooler ,” and at some point, took Richar d Ehlenfe ldt, one of the owner s, into the cooler . Deg orski then fire d sever al shots. ¶ 19 Def

endant kept an eye on the five other employees until Deg orski order ed them into the

-4-fr ee z er

. De g orski g ave defe ndant a knife and told him to have the “lady owner ” (Ly n n Ehl en fe l d t ) get the money out of the safe
, but “with ever y thing g oing all wild and cra zy ,” defe ndant “g ot caught up in the moment and *** cut her on her throat

. ” De go rski then handed the gun to defe ndant, took some money out of the safe and drag g ed Ly nn Ehlenfe ldt into the free zer. When defe ndant looked into the fre ezer, the four men inside plea ded with him not to shoot. D efe ndant fired one shot into the fre ezer, and Deg orski then took the g un back a nd fired repe atedly into the free zer. After Deg orski chec ked to “make sure e veryone

was dead” by kicking them and poking them with a stick, he and Deg orski turned off the lights and locked the doors to make it look like the place was closed. After leaving throug h the side employ ee door, defe ndant and Deg orski drove to Carpente rsville wher e t h ey m et Ba kalla. She then drove them in her car to her house wher e defe ndant and Deg orski split the
money

.

¶ 20 I I . Palm PrintEvidence ¶ 21 Dr. J ane Homeyer testified that at the time of trial she was the Direc tor of Competencie s and Standards in the Offic e of the Direc tor of National Intellige nce. She had also worke d for the FB I
, but befor e 1999, Dr. Homeyer was a fore nsic scientist at the Norther n I llinois Police Crime L abora

tory (N I P C L ). Testifying as an expert in the “fie ld of prints and *** crime

scene s,” Dr. Homeyer explained that she was part of the team that documented the Br own’s Chicken crime scene

. Her primary responsibilities wer e to proce ss prints and help collect and
prese rve e vidence

. ¶ 22 On J anuar

y 11, 1993, while examining the scene at the Br own’s Chicken, Dr. Homeyer

saw that t he reg ister rec eipt on one of the cash reg isters showed that a four- piece chicke n meal with fries, coleslaw
, and a small drink was purcha sed at 9:08 p.m. She also noticed that, althoug h the g arba g e re ce p t ac l e on the west side of the dining room had a relatively fre sh bag
, it contained a car dboard box with four piece s of chicke n, scatter ed Fr ench fries, biscuits, coleslaw
, paper products (including four used napkins), and other chicke n piece s and bones. ¶ 23 Dr. Homey er and her colleague C h ri s Hedg es removed t he plasti c gar bag e bag and set i t o n t h e fl oor so that they could “compa r[e] the cash reg ister rec eipt with the g ener al
contents of the g arba g e bag to se e if in g ener al they looked and appe are d to be consistent.” After concluding that there “wa s g ood alig nment betwee n the items, the food items, and the
paper items that wer e in the bottom of the g arba g e bag ” with what was on the reg ister tape, Dr. Homeyer beg an separ ating out the paper items f rom the food items. She seale d them in
paper bag s and transpor

ted them to the laboratory for pr ocessing

. ¶ 24 On J anuar

y 14, 1993, Dr. Homeyer beg an proce ssing the paper items for fing erpr ints at the NI PCL labora

tory

. Dr. Homeyer examined the four napkins from the bag under various
ang l es o f l ight to see if there wer e any patent print impressions. She then di pped each in a

n i n h y d rin solution to help make any latent fing erpr ints visible. Dr. Homeyer found o n e suitable impression on one napkin and photogr aphed it (ninhydrin prints fade over time). She
repe ated the ninhydrin trea tment to enhance the print and took anothe r photog raph. ¶ 25 L ater , sometime around J anuary 2 2 o r 2 3
, 1 9 9 3, at the I llinois State Police Crime L aboratory , Dr. Homeyer attempted to use zinc c hloride to r eac t w ith the lipids in the print

-5-residue to develop additional impressions on the napkins. No additional prints wer e

develope d, but the proce ss left the earli e r

- d e v e lo p e d print obscure d by darke ned or blacke ned

are as. ¶ 26 Dr. Homeyer examined defe ndant’s fing erpr int and palm print car ds on Marc h 2, 1993, but the left palm print was m i s sing from those car ds. Arling ton Heig hts Police Offic er Ronald Sum testified that he interviewe d defe ndant (a l o ng with other former Br own’s employ ees) and took defe ndant’s fing erp rints and palm prints, along with his photogr aph,

on Fe bruar

y 17, 1993. Sum testified that he acc identally failed to include defe n d ant’s left palm print on the ca

rd. ¶ 27 After defe ndant’s arr est, howeve r, h i s fu l l p al m p ri n t s we re s ub m i t t ed to J ohn Onstwedde r, a latent print examiner, who t estified as an ex pert in latent print examination
at trial. Onstwedde r, a member of the International Association for I d en t i fi cation, had testified over 100 times as an expert in latent print examination. He co n cl uded that the napkin print matched a small are a o f the palm under defe ndant’s left “pinky .” Using a te c h n iq u e k n o wn a s A CE

- V ( a

n a lys is
, c o mp a

rison, evaluation, and verific ation), Onstwedde r testified in detail about the common char acte ristics betwee n the latent print and defe ndant’s known print. ¶ 28 On cross-e x amination, Onstwedde r testified that he fi rs t ra n t h e p ri n t t h ro ug h the Auto ma te d F in g e r p r in t I dentification Service (AF I S), which c o ntain s o n ly f in g e r p rin ts

. Wh e n Onstwedde r perf

ormed the compar ison betwee n the known print and the latent print
, h e k n e w that defe ndant had been arr ested and that “ther e was other evidenc e pointing at him.” Whil e Onstwedde r testified that h e h ad n ev er made an err or, he acknow ledg ed that err ors in fing erpr int identification have occur red in the past, and he testified about his knowledg e of specific case s of err oneous identifications. He also acknow ledg ed that ear lier in the investigation, two examiners had matched the napkin print to someone other than defe ndant. Onstwedde r agree d that “eve ry step of the wa

y involves subject ca lls or judgment c alls for
y ou [t o] get to the ne x t step.”

¶ 29 I I I . DNA Evide nce ¶ 30 Along with the paper napkins, the chicke n bones in the g arba g e bag wer e taken back to the evidenc e room on J anuar y 11, 1993. At some point, Dr. Homeyer combined all the food piece s into a singl e plastic bag

. The bag was stored at the NI PCL labora tory at room temperat u re u n t il J anuar

y 14, 1993, when she opened it to inventory and photogr aph the chicke n piece s found in the box. ¶ 31 In 1994, Dr. Homeyer sent the chicke n piece s to a pri v at e l ab o ra t o ry , L ife Codes, for DNA testing. Rich Cunningham, a former employ ee o f L i fe C o d es, testified that he attempted to obta in a DNA sample from one of the chicke n bones, but the amount of DNA potentially prese nt, about 1 to 2 nanog rams, was too small for the ty pe of testing L ife Codes

was using at the time. Cunningham was looking for a sample siz e of around 10 nanograms, as L ife Codes was not y et us ing “Short Tande m Repeat” (S TR) testing, wh i ch wo rk s well with smaller amounts of DNA. After the testing, Cunningham disposed of the bone he tested. In Cunningham’s opinion, there “would be no rea son” to keep the bone, for he had exposed

-6-the bone to a chemica l bath, such that he had remove d “all the cellular materia l” from the

bone. He returne d the other unte sted chicke n bones to the Palatine police

. ¶ 32 Ornitholog ist Dr. David W i l l ar d t es t i fi ed that in J une 1995, he rec eived the chicke n evidenc e at the Chicag o Field Museum from Palatine police officer s

. He attempted to deter mine how many piece s of chicke n wer e in the g arba g e bag

. The partially thawed chicke n

was set out on an unsterilized table in a semi-public are a of the museum. Dr. Wil lard and a colleague pulled back meat from some of the bones and remove d meat from others. They did
not wea r g loves or masks. Dr. Wil lard tes t i fi ed t h at h e looked at eac h bone and g ave it a

name ( e.g. , “wing bone”)
, but he could not deter mine what ty

pe of meal ( e.g. , four- piece or five-pie ce) was prese nted by the chicke n piece s beca use he did not know what ty pe of piece s

wer e included in those diff ere nt-sized meals. ¶ 33 Debr a Depc zy nski of the I llinois State Police For ensic Scienc e Center in Chicag o (I SP laboratory

) t estified that on September 18, 1998, she b ega n t ests to deter mine if there was any saliva on the partially eate n chicke n bones. On two of the five bones, she was able to g et a posi tive result. Depczy

nski g ave a s et of four swabs for each of the t wo bones to Cecilia Doyle for te sting. ¶ 34 Cecilia Doyle, chief of the Biology -D NA section of the I SP laboratory , testified as an expert in the field of DNA analy s i s

. As ex plained in g rea ter detail in the analy sis section below, Doyle used STR DNA analy sis on the swabs from the two bones and was able to

o btain a nine-loci DNA profile from the bones. She explained that in 1998, the l ab o ra t o ry

was only looking at 9 allele locations for DNA profiles and did not advanc e to 13-loci DNA testing until 1999. ¶ 35 The testing reve aled that eac h sample contained DNA from multipl e contributors. Doyle testified that a DNA profile, viewed on a g raph called an elec tropherogram, normally has just
two peaks at any one are a of the DNA ( i.e.
, any locus), beca use half of the DNA is inherited from the mother and half from the father. W hen an allele ( i.e.
, an area of gene tic variation that analy sts measure and u s e fo r compar ison) is detec ted at a particula r locus, it is
repr esente d by a peak plotted at a point on the elec tropherogram. Her e, Doyle saw more than
two peaks at two of the nine loci tested, indicative of a mix ture. To bring up more alleles from the “minor profile” (the one with lower peak heig hts), Doyle repe ated the analy sis using more of the sample. That test re veale d alleles at four more loci. ¶ 36 Kenne th Pfoser testified as an ex pert in the field of DNA. In May 2002, when he wa s assistant DNA technica l leade r at the I SP laborat o ry , Pfoser revie wed the DNA profile obtained from defe ndant (in 2002 and 2004) as well as the major profile obtained from the chicke n bone swabs. In his opinion, the profiles matched. He testified that the profile would be expected to occur in 1 in 139 trillion Bla ck, 1 in 8.9 trillion Cauca sian, and 1 in 2.8 trillion Hispanic unre lated individuals. ¶ 37 Def

endant prese nted t est imony of Dr. Kar l Reich, founder and part owner of a private laboratory that perf

orms and advises on DNA testing for law enfor ceme nt and pri v ate individuals. Dr. Reich, who holds an M.D. and a Ph.D. in molecular biology
, testified t hat the I SP ran the 220,456 rec ords in the Combined DNA Index S y s t em (CODI S) databa se ag ainst eac h other to deter mine the number of nin e- l oci matches. The study reve aled 903

-7-pairs of matching nine-loci profiles in the databa se, i.e.
, 1,806 persons with ide ntical DNA

at ni ne loci. In Dr. Reich’s opinion, the s tudy cast doubt on the S tate’s claim that the odds of anothe r unre lated Hispanic sharingdefe ndant’s DNAat nine loci ar e 1 in 2.8 trillion. ¶ 38 Dr. Reich also testified that there was “ no way” to de termine the source of the DNA or when the DNA was deposited on the bone. Dr. Reich stated that 13 loci, not 9, are nece ssary to ha ve a “scie ntifically
, fully justifiable identity match.” On cross-e x amination, Dr. Reich testified that his laboratory was paid over $100,000 for its work on this “ver y complicated”

case

. ¶ 39 In rebuttal, the State called Dr. Ranajit Chakrabor ty , who testified that the results of the I llinois DNA databa se study did not cast doubt on the random match probability that another person sha

res de fenda

nt’s particula

r nine-loc i profile.

¶ 40 I V. Statements of John S imonek ¶ 41 Be fore trial, the court g rante d defe ndant’s motion to admit a statement by J ohn Simonek,
g iven to Palatine detec tives August 9, 1999, that h e an d T o dd Wakefield committed the murders. A ccor ding to Sim onek’s videota ped stateme nt, which was pla y ed for the jury , he and Wakefield went to Br own’s Chicken on the evening of J anuar y 8, 1993. Wakefield drove

a brown station wag on, which he parke d on the east side of the restaur ant, and Simonek and Wakefield enter ed throug h the east door. Wakefield order ed food. Five to ten minutes later, h e pulled out a revolve r and told the employ ees to move into the fre ezer. Acc ording t o Simonek, Wakefield “moved ever y body except for two people into the fre ez er , ” and Simonek escorted the two people into the “othe r fr eezer .” ¶ 42 As he moved back toward Wakefiel d
, S i m o n ek h eard gunshots and “starte d fre aking out.” Wakefield shot the people in the fre ezer and then order ed Simonek to shoot the people in the cool er. Simonek argued with him and told Wakefield he did not “wa nt any part of this,” but Wakefield “proc eede d to make [S imonek] do it any way .” S i m o n ek “re call[ed] shooting somebod y o u t s i d e the fre ezer,” but did not “re member how they g ot out there though.” When Wakefield direc ted Simonek to shoot the person inside the cooler
, Simonek

re s isted, but then shot into plastic strips over the entra nce of the cooler

. Wakefield and Simonek moved the body that was outside the cooler into the cooler and “laid it on its rig ht side fac ing east.” Simonek then saw Wakefield stab two or three people in the fre ezer. Be fore leaving
, Simonek sa

w that the fre ezer door was left partially open. He waited in the car for Wakefield, who drove him home. Simonek said he was “ver y sorry it happened ,” he “just want[ed] thi s to be over,” and he “ hope[d] [W akef ield] gets locke d up.” ¶ 43 Be fore g iving the videotaped s t at em en t , S i m o n ek was arr ested on August 5, 1999. Serg eant King testified that J im Be ll, coordinator of a task forc e to investigate the Br own’s Chicken murder s , had Simonek arr ested, without King ’s knowledg e, when King was on

vacation. Police office r Steve Br atche r, who was one of the office rs prese nt for the statement, denied supplying Simonek with details about the crime scene

. After g iving his statement on August 9, 1999, Si monek was r elea sed and ne ver pr osecute d. ¶ 44 Assistant S t at e’ s At t o rney J ohn Dillon testified that in J uly 1998, he had questioned Simonek at the reque st of J im B ell. Simonek init ially described what he was telling Dillon

-8-as a “vision statement,” meaning that the information Simonek g ave was based on a vision

he had. Dillon further t estified that Simonek g ave five statements, none of which was the same, whic h Simonek claimed wer e base d on his firsthand knowledg e. ¶ 45 Apar

t from Simonek’s statement, the court denied defe ndant’s motion to admit two other
st at em ents made to police, from Todd Wakefield and his former g irlfriend, Casey Sander. In his statement, Wakefield told police that he was at Brown’s Chicken on the night of the murders, that he ate the last meal sold that night, but that he was not involved in the murders. Sander told police that she saw Wakef i el d s h o ot people at the Br own’s Chicken, but she denied any involvement in the murders. The trial court found that these hear say statements, discussed in more de tail in the a naly sis be low, could not be admitted as statements a g ainst penal inter est. ¶ 46 T h e jury found defendant guilty of seven counts of first deg ree murder. The t rial cour t d enied defe ndant’s motion for a new trial. The jury found defe ndant elig ible for the deat h penalty but did not reac h a unanimous ver dict on imposing a death sentence, and the cour t sentenc ed def

endant to natur al life imprisonment. Def endant now a

ppeals.

¶ 47 ANALYSI S ¶ 48 I . L atent Print Evidence ¶ 49 De fe n d an t first argues that the trial court err ed when it denied his motion in limine to exclude J ohn Onstwedde r’s expert testimony that defe ndant’s palm print matched the partial latent print from the napkin found at Br own’s Chicken. Def endant contends that the method used to match a known print to a latent print, known as friction ridg e analy si s or, more specific ally “ACE-V ,” is not g ener ally acc epted in the r e le v a n t s c ie nti fic community and thus the ex pert testim ony should have be en excluded under Frye v . United States
, 293 F. 1013, 1014 (D.C. Cir. 1923). Alternatively
, defe ndant argues that the court should have conducte d

a Frye hear ing to deter

mine whether friction ridg e analy sis is a g ener ally acc epted technique within the rele vant community

. Our revie w is de novo

. In re Commitment ofSimons
, 213 I ll. 2d 523, 530-31 (2004) ; People v . McKown ( McKown I

), 226 I ll. 2d 245, 254 (2007). ¶ 50 The admission of expert testimony in I llinois is g overne d by the Frye “g ener al ac c e p ta n c e test.” Under Frye
, “s ci entific evidenc e is admissible at trial only if the methodology or scientific principl e u

p o n wh ic h the opinion is based is ‘suffic iently established to have g ained
g ener al acc eptanc e in the particula r field in which it belong s.’ ” Simons
, 213 I ll. 2d at 529-30 (quoting Frye
, 293 F. at 1014). “[T] he Frye test is nece ssary only if the scientific principle, technique or test offe red by the expert to support his or her conclusion is ‘new ’ or ‘novel.’ ” People v. McKown (

McKown II

), 236 I ll. 2d 278, 282-83 (2010). “Ge nera l acc ept an ce” of

a methodology does not mean “univer sal acc eptanc e,” and “it does not require that the methodology *** be acc epted by unanimity
, co n s ensus, or even a majority of experts.” Simons
, 213 I ll. 2d at 530; Donaldson v. Central Illinois Public Servic e Co.
, 199 I ll. 2d 63, 76-77 (2002), abrogated on other grounds by Simons
, 2 1 3 I l l

. 2d at 530. Under Frye
, we inquire as to the g ener al acc eptanc e of a methodology
, not the particula r conclusion rea ched by an examiner or the application of the methodology in a particula

r case

. Donaldson
, 199 I ll. 2d at 77; McKown I

, 226 I ll. 2d at 255.

-9-¶ 51 A. J udicial Notice of Gene ral Ac cepta

nce ¶ 52 “A court may deter mine the g ener al acc eptanc e of a scientific principle or methodology in either of t wo wa y s : (1 ) b ased on the results of a Frye hearing; or (2) by taking judicial notice of unequivoca l and undisputed prior judicial decisions or technica l writings o n t h e subject.” McKown I

, 226 I ll. 2d at 254. In this case , the trial court denied defe ndant’s motion for a Frye hear ing and instead conclude d that “the methodology used in palm print identification is commonly acc epted within the scientific community .” Be cause the court’s decision to take judicial notice of g ener al acc eptanc e is c entra l to this a ppeal, we revie w in

some detail two rec ent opinions fr om our supreme court on the issue: In re Commitment of Simons
, finding that judicial notice of g ener al acc eptanc e was proper , and McKown I
, finding that a Fryehearing w as re quired. ¶ 53 In Simons
, our supreme court co nsidered whether the trial court proper ly took judicial notice of the g ener al acc eptanc e of actua rial risk assessment. Simons
, 213 I ll. 2d at 533. The
supreme court, noting that the appellate cour t in I llinois was “shar ply divided” on the question ( id. ), explained that “experts in at least 19 other states rely upon actua rial risk

as sessment in forming their opinions on sex offe nders’ risk of rec idivism .” Id. at 5 3 5 -3 6

. Among these court opinions, eig ht had “dire ctly addre ssed the Frye question and conclude d either that Frye is inapplicable to actua rial risk assessment or that actua rial risk assessment satisfies the g ener al ac cepta nce sta ndard.” Id. ¶ 54 Whil e acknow ledg ing that “re lying exclusively upon prior judicial decisions to establish
g ener al scientific acc eptanc e can be a hollow ritual if the underl y i n g i s s u e of scientific

acc eptanc e has not been adequa tely litigated,” the court conclude d that “g ener al acc eptanc e of actua rial risk assessment has been t h o ro u gh ly litigated in sever al states.” (Interna l quotation marks omi tted.) Id. at 537. As an ex ample, the Simons cour t re v i ew ed a Florida appellate court opinion wher e the court revie wed testimony of four experts at trial (whi ch showed that actua

rial risk assessment was fre quentl y used), “exhaustively examined”

conc l u s i o ns rea ched by a number of other psy cholog ists in the aca demic literature
, and “surve y ed the nationwide jurisprudenc e,” which uniformly found actua rial risk assessment evidenc e admissible. Id. at 537-39 (citing Roeling v. State , 880 So. 2d 1234, 1238- 40 (F la. Dist. Ct. App. 2004)). The court specific ally n o t ed t h e absenc e of judicial opinions
contra dicting the conclusion rea ched by the Florida court: “As importantly
, we wer e unable to identify

any state out side of I llinois in which expert testimony based upon a ctuar ial risk
assessment was deeme d inadmissible on the question of sex offe nder rec idivism .” Id. at 539. ¶ 55 The Simons court then observe d that s ev er al j u ri s d i ct i o ns mandated actua rial risk assessment by statute or regulation. The court further “note[d] that the academic literat ure contains man y ar t i cles confirming the g ener al acc eptanc e of actua rial risk assessment by profe ssionals who assess sexually violent o ff en d ers for risk of rec idivism .” Id. at 541. Ultimately
, the court conclude d that “[t] aking all of this toge ther–the case law, the statutory law, and the aca demic literature ,” it was “more than convince d that actua rial risk assessment has g ained g ener al acc eptanc e in the psy cholog ical and psy chiatric communities.” Id. at 543. ¶ 56 The court en co u n t er ed a v ery differ ent landsca pe of judicial opinions and scie ntific literature in McKown I

. In McKown I

, the trial court admitted the results of Horizontal Gaze

-10-Ny s tag mus (HGN ) testing, purportedly measuring involuntary rapid movement o f t h e

eyeballs. McKown I

, 226 I ll. 2d at 247-48. On appea l, the defe ndant argued that the trial court

err ed in admitting the results o f a t es t wi thout first holding a Frye hear ing to deter mine whether it was g ener ally acc epted that HGN testing is a reliable indicator of al co h o l consumption. Id. at 247. ¶ 57 Our supreme court first deter mined that the methodology of HG N t es t i n g i s novel for
purposes of Frye “[g]iven the history of leg al challeng es to the admissibili t y of HGN test evidenc e, and the fac t that a Frye hear ing has never been held in I llinois on this matter.” Id.
at 258. The court relied on a decision o f t h e C ali fornia Supreme Court, which held that “ ‘HGN testing has been repe atedly challeng ed in court, with vary ing deg ree s of succe ss, in this and other states, and acc ording ly its courtroom use cannot fairly be char acte rized as “routine” or settled in law.’ ” Id. at 257 (quoting People v . Leahy , 882 P.2d 321, 332 (Cal. 1994)). The McKown I court noted that since the California decision in 1994, “HGN testing has been repe atedly challeng ed in courts around the nation, and the issue rema ins unsettled.” Id. ¶ 58 Turning to the issue of g ener al acc eptanc e, t h e co u rt fi rs t reviewed the diverg ent decisions of the I llinois Appellate Court. Whil e two districts of the I llinois Appellate Court had t aken judicial notice of g ener al acc eptanc e of HGN testing as an indicator of intox ication, in another decision, People v. Kirk
, 289 I ll. App. 3d 326 (1997), the appellate
court declined to take judicial notice of the g ener al acc eptanc e of HGN testing. In Kirk
, the appellate court found that in the s eminal case establishi ng g ener al accepta nce relied on b y most courts, the trial court had not conducte d a Frye hear ing, and the revie wing court relied

on the testimony of the State’s expert to establish g ener al acc eptanc e, as no defe nse witness had been called. Kirk
, 289 I ll. App. 3d at 333-34; McKown I
, 226 I ll. 2d at 263-65. Be y ond the Kirk decision, the McKown I court revie wed sever al ap p el l at e court decisions from fore ign jurisdictions and found that they wer e “as varie d as the states that have made them”
reg arding the gene ral acce ptance of HGN testin g. McKown I
, 226 I ll. 2d at 272. The court conclude d that these decisions did “not prese nt the kind of unequivoc al or undisputed viewpoint on the issue upon which a court c an take judicial notice.” Id. ¶ 59 Turning to the S tate’s argument that the court could t ake judicial no t i ce o f t h e gene ral

acc eptanc e of HGN testing “base d on the technica l writing s on the subject,” the court found that “HGN testing appea

rs to have as many critics as it does champions.” Id. at 275. Wit hout

an “unequivoc al or undisputed viewpoint” fr o m t he scientific literature
, the court decide d that it could not “take judicial notice of the g ener al acc eptanc e of the HGN test as a reliable indicato r o f al co h ol impairment based on these technica l writing s.” Id. In contra st to its resolution in Simons
, the McKown I court conclude d th at g ener al acc eptanc e could not be resolved on judicia l notice alone:
“In light of the disparate resolutions of the is s u e i n foreign jurisdictions, the vary ing opinions expressed in article s on the subject, the fac t that a Frye hear ing has never been held on the matter i n I l linois, and the fac t that, as far as we are awa re, the last Frye hear ing held on this controve rsial methodology was held in Washington in 2000, we hold that a Frye hearing must be held to d et er m ine if the HGN test has been g ener ally

acc epted a s a re liable indicator of alcohol impairment.” Id. at 275.

-11-Wit h this framew ork in mind, we turn to the re levant methodolog y in this case.

¶ 60 B. L atent Print I dentification: The ACE-V Method ¶ 61 Print examiners com p ar e i m p re s s ions left by “fr iction ridg e skin” found on the inner surfa ces of the hand, the fing ertips, betwee n and along the fing ers, t h e p al m s , and on the soles of the fee t. While defe ndant does not dispute that human friction ridg e skin is unique and perma

nent, defe nd an t challenge s the method used to match a latent print ( i.e.
, a fing erpr int impression that is not visible to the naked eye without chemica l enhanc ement) with the print of an identified source

. That m ethod i s known as “ACE-V ,” which signifie s analy sis, compar ison, evaluation, and verific ation. Whil e the steps perf ormed under ACE-V

are essentially the same steps perf ormed by fing erpr int e x perts over the last hundred y ear s, ACE-V has been identified in fore nsic l i t erature as a means of compar ative analy sis of evidenc e s i n ce 1 9 5 9. National Resear ch Council of the National Aca demy of Science s, St r en gthening Forensic Scienc e in the United States: A Path Forward 37 (2009) (NRC Report). The ACE-V method ha s been g ener ally described as follows:
“The proce ss beg ins with the analy sis of the unknown friction ridg e print (now often a digital imag e of a

latent print). Many fac tors aff ect the quality and quantity of deta il in the latent print and a lso introduce variability in the resultingimpression. ***
* * *
*** I f the examiner deems that there is sufficie nt detail in the l at en t print (and the known prints), the c omparison of the latent print to the known prints beg ins. Visual compar ison consists of discerning
, visually ‘m ea s uring ,’ and

co m p aring–within the compar able are as of the latent print and the known print s

– t h e details that corr espond. The amount of friction ridg e detail available for this step depends

on the clar ity of the two impressions. The details observe d might include the overa ll shape of the latent print, anatomica l aspec ts, ridg e flows, ridg e counts, shape of the core , delta location and shape, leng ths of the ridg es, minutia location and ty pe, thickness of the ridg es and furr ows, shapes of the ridg es, pore position, cr ease patterns and shapes, scar shapes, a nd temporar

y feature shape s (e.g ., a wa rt).
At the co mpletion of the compar ison, the examiner perf orms an evaluation of the
ag ree ment of the friction ridg e formations in the two prints and evalua tes the sufficie ncy of the detail prese nt to establ i s h an identification (sourc e deter mination). Source deter mination is made when the examiner conclude s, based on his or her experience
, that sufficie nt quantity and quality of friction ridg e detail is in ag ree ment betwee n the latent print and the known print. Source exclusion is made when the proce ss indicates sufficie nt disag ree ment betwee n the l atent print and known print. I f ne i t h er an i dentification nor

an ex clusion can be reache d, the result of t he comparison is inconclusive. Verification

occur s when another qualified examiner repe ats the observations and comes to the same conclusion, althoug h the second examiner may be awa re of the conclusion of the first.” NRC Report, supra , at 137-38.

-12-¶ 62 C. L atent Print Analy sis as “Ne w” or “Nove l” ¶ 63 As a threshold matter, we must consider whet h er a F r ye inquiry is require d at all, for application of the Frye tandar d is limit ed to scientific methodology that is considere d “new ”

or “novel.” McKown
, 226 I ll. 2d at 257; Donaldson
, 199 I ll. 2d at 78. Whil e rec og nizi ng that “a ‘new ’ or ‘novel’ sc ientific technique is not alway s easy to ide ntify
, espec ially in lig ht of
constant scientific advanc es in our modern era ,” our suprem e co u rt has instructed that
g ener ally a “scie ntific technique is ‘new ’ or ‘novel’ if it is ‘orig inal or striking’ or does ‘not

rese mbl[ e] something former ly known or used.’ ” Donaldson
, 199 I l l

. 2d at 78 (quoting Webster’s Third Ne w International Dictionary 1546 (1993))

. ¶ 64 The State initially contends that we can end our inquiry here beca use the long history

of latent print analy sis prec ludes a conclusion that the “methodology used in [t he] compar ison of the latent and k n o wn p ri n ts” is new or novel. People v. Mitchell
, 2011 I L App (1st) 083143, ¶ 31. In Mitchell
, this court rea soned t h at “[ u ]nt il 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 h ea ri n g on the admissibili ty of fing erpr int evidence . Nor a re w e per suaded to provide such authority in this case.” Id. ¶ 65 Whil e it would be difficult to descr ibe fi n g erpr int evidenc e as “orig inal or st riking ” or
not “for merly known or used,” Donaldson acknow ledg es that “consta nt scientific advanc es in our modern era ” may aff ect our i n quiry as to the novelty of a particula r methodology

. Donaldson
, 199 I ll. 2d at 79. Dra wing support from McKown I
, defe ndant arg

ues that latent print identification should be deeme d “novel” beca use althoug h latent print analy sis has long been used by print examiners, the methodology
, like HGN testing, has been subject to rec ent court challeng es and ha s not been subjec t to a Fryehear ing in I llinois

. See McKown I
, 226 I ll. 2d at 258 (“G iven the history of leg al challeng es to th e ad m i s s i b i l i ty of HGN test evidenc e, and the fac t that a Fryehear ing has never been held in I llinois on this matter
, we conclude that the methodolog y of HGNtesting is novel f or purpose s of Frye .”). ¶ 66 Acc ordingto defe ndant, “[n] ovelty for Fryepurposes is not deter mined by the number of yea rs a t ec hnique has been used, but by whether the methodology has been subject to

rec ent challeng e.” We find it unclea r whether the court in McKown I found that HGN testing was novel (1 ) m er ely beca use t here was a “history of l eg al challeng es,” or (2) because the
courts addre ssi n g t hose challeng es had rea ched differ ent conclusions as to the g ener al

acc eptance of HGN testing. See id. at 257. As explained below, courts have uniformly reje cted challeng es to the admissibili t y o f print evidenc e under Frye or Daubert

. In any event, even if we agree with defe ndant’s view of the novelty threshold an d fi n d that the ACE-V methodology is “novel” mere ly beca use rec ent challeng es have been broug ht, it does
not follow that the trial court was require d to hold a Frye hear ing. We must consider whether it was proper for the trial court to take judicial notice of prior jud i cial decisions that have thoroug hly explored the issue or technica l writing s on the subject. McKown I
, 226 I ll. 2d at 254.

-13-¶ 67 D. J udicial Notice of Gene ral Ac cepta

nce of the ACE-V Me thod ¶ 68 As noted above, and as defe ndant acknow ledg es, wholesale o b j ec tions to the ACE-V methodology

have be en uniformly

reje cted by state appellate courts (unde r Frye
, Daubert
, or some hy

brid standard of admissibili ty ) and by fede ral appellate courts (under Daubert ). 1 See, e.g. , State v. Dixon
, 822 N.W.2d 664, 674-75 (Minn. Ct. App. 2012) (af firming lower court’s conclusion that AC E-V methodology was g ener ally acc epted within the rele vant scientific community
, afte r conducting Frye hear ing involving three expert witnesses from the State and two expert witnesses for the defe ndant); Commonweal th v. Patterson
, 840 N.E.2d 12 (Mass. 2005) (af firming lower court’s conclusion, afte r conducting five-da y evidentiar y hear ing to consider defe ndant’s challeng e to the admissibili ty of print evidenc e, that latent print identification theory and the ACE-V proce ss of identification wer e g ener ally

acc epted in the fing erpr int examiner community); Commonwealth v. Gambora
, 933 N.E.2d 50, 55-61 (Mass. 2010) (re aff irming its ear lier decision in Patterson ); Markham v. State
, 984 A.2d 262 (Md. Ct. Spec

. App. 2009) (takingjudicial notice of g ener al ac cepta nce of latent fing erpr int analy sis in case i n v o l v i n g a palm print); Barber v. State
, 952 So. 2d 393, 422 (Ala. Crim. App. 2005) (taking judicial notice of g ener al acc eptanc e of latent print analy sis in case involving a palm print); State v. Escobido-Ortiz
, 126 P.3d 402, 413 (Ha w. Ct. App. 2005) (“We take judicial notice, base d o n the overwhelming case law from other jurisdictions, that the theory underlying latent fing erpr int identification is valid and that the
proce dures use d in identifying latent fing erpr ints, if perfor med prope rly , have been w idely

acc epted as reliable .”); United States v. Herrera
, 704 F.3d 480, 484 (7th Cir. 2013) (re jecting the defe ndant’s “fr ontal assault on the use of fi n gerp ri n t evidenc e in litigation” under Daubert); United States v. Baines
, 573 F.3d 979, 989-92 (10th Cir. 2009) (finding
, based on

rec ord develope d at a Daubert hear ing, “over whelming acc eptanc e” among “experts in the field,” but noting “little prese nce of disinterested experts such as aca demics”) ; United States

v. Pena
, 586 F.3d 105, 109-11 (1st Cir. 2009) (taking judicial notice of Baines
, Mitchell
, and other fede ral decisions as to r eliability of ACE-V method under Daubert); United States v. Vargas
, 471 F.3d 255, 265-66 (1st Cir. 2006); United States v. Abreu
, 406 F.3d 1304, 1307 (11th Cir. 2005); United States v. Mitchell
, 365 F.3d 215, 244-46 (3d Cir. 2004) (re viewing the “voluminous rec ord” develope d at a Daubert hear ing w h e r e w it n e s s e s for the g overnme nt and defe ndant testified, finding latent print evidenc e admissible under Daubert
, and finding that “fing er print identification is g ener ally acc epted within the fi n gerp ri nt identification community ”); United St a t es v. Crisp
, 324 F.3d 261, 269 (4th Cir. 2003) (finding that d ef endant had “provide d us no rea son today to believe that this g ener al acc eptanc e o f t h e principles underlying fing erpr int identification has, for decade s, been mispl ace d”); United States v. George
, 363 F.3d 666, 672-73 (7th Cir. 2004); United States v. Sherwood
, 98 F.3d 402, 408 (9th Cir. 1996); see also United States v. Llera Plaza
, 188 F. Supp. 2d 549, 563-64

Wh il e Daube rt loo ks to the re li abi li ty of an exp er t’ s m et hodo logy, as wel l as the expe rt ’s 1

con cl usi on, cou rt s app lying Daube rt al so con si der genera l acc ept anc e wit hin the re le vant sci ent if ic

or exp er t comm

uni ty, among oth er fa ct ors

. See Daube rt v. Me rre ll Dow Phar mace uti cal s, Inc

. , 509 U.S. 579, 593-94 (19 9 3 ) ; U n i t ed Sta te s v. Bai nes , 573 F.3d 979, 985-86 (10 th Cir

. 2009 ). See
genera ll y Mi cha el H. G ra ham, Gra ham’s Handb ook of I ll ino is Evidenc e § 702. 10 (10t h ed. 2010).

-14-(E.D. Pa. 2002) (findingthat latent print ana ly sis satisfied Daubert test, afte r hear ing f rom two g overnme nt witnesses and three defe nse witnesses, an d finding that “fing erpr int community ’s ‘g ener al acc eptanc e’ of ACE-V should not be discounted beca use fing erpr int specia lists * * * have ‘tec hnical, or other specia liz ed knowledg e’ [citation]
, rathe r than ‘scientific knowledg e’ [citation]”). ¶ 69 Indeed, defe ndant has not cited a published opinion of any court sug g esting that ACE-V 2 methodology is not g ener ally acc epted within the rele vant scientific community or holding that fin ger o r p alm print evidenc e is inadmissible. Instead, while acknow ledg ing the
perva sive use of fing erpr int identification–and the overwhelming c onclusion by the cour ts that such evidenc e is adm i s s i b l e under Daubert or Frye –defe ndant argues that rec ent criticisms of t he ACE-V method in the s cientific lit erature preclude this court from taking judicial notice of its g ener al acc eptanc e. Foc u s i n g p ri m arily on a 2009 repor t from the National Resear ch Council of the N a ti o n a l A c a d e my o f Sc ie nces, defe ndant identifies sever al specific criticisms of the ACE-V method, which he contend s es t ab lish a lack of g ener al

acc eptanc e within the rele vant scientific community

. NRC Report, supra

. Def endant further
argues that beca

use ear lier court decisions mere ly ref lect “[u] ncritica l admi s s i o n o f latent print evide n ce , ” o r otherwise do not addre ss the report’s critiques, it was improper for the trial court to take judicial notice of court decisions finding a g ener al acc eptanc e of lat ent p ri n t i dentification. For sever al rea sons, we conclude that these criticisms–which have alre ady been considere d in de tail by courts since the repor t’s rele ase–do not undermine the

Def end ant ci te s an unpubli sh e d M a r yla nd tr ia l cou rt ord er , Ma rylan d v. Rose
, No. K 06- 2 0545 (Ci r. Ct. Bal ti m o r e C o

. O c t

. 1 9
, 2007 ), in sup por t of his cl ai m tha t the cas e la w is not “un equ ivocal ,” m aking j udi ci al not ic e of ACE- V ’s genera l acc ept anc e imprope r. We dis agree tha t the unpu bli she d tr ia l cou rt ord er pre cl ude s thi s cou r t fr om ta king j udi ci al not ic e of genera l

acc ept anc e bas ed on the con si der abl e aut hor it y ci te d abo ve. Fi r s t , w e a r e uns ure of the ord er ’s bea ri ng on the genera l acc ept anc e inq uir y. Wh il e the cou rt st at ed tha t it was unde rt aking a tr adi ti ona l Fry e inq uir y, the cou rt not ed “whi le D e f e n dan t has ar gued a number of re aso ns why genera l

acc ept anc e sho uld be dis cou nte d, Def end ant has no t cha ll enged the not ion tha t la te nt fi ngerpr int ide nti fi cat ion s have bee n gener al ly acc ept ed. Rat her , Def end ant ’s con te nti on i s t hatth e r el ia bil it y of suc h ide nti fi cat ion s have not bee n pro ved si nce the y have not bee n sub j ect ed to sci ent if

ic te st ing.” Sec ond, the cou rt did not def i n e the re le vant sci ent if

ic comm uni ty or oth er wis e dis cus s the views of for ens ic sci ent is ts sup por ti ng admissi bil it y. I t m ay be t h a t t hos e views wer e not ade qua te ly
pre sen te d; the cou rt cha ra ct er ized the gov er nm ent ’s p r ese nta ti on as “pr inc ipa ll y [r el ying] on the his tor y of ac cep ta nce of

fi ngerpr int id ent if

ic at ion evide nce .” W e note , however, that th e c our t d id
not m ent ion an a m i c u s b r i e f sub m it te d by sci ent is ts in sup por t of the admissi bil it y of fi ngerpr int
te st ing tha t was app ar ent ly bef ore the cou rt

. See Unit ed Sta te s v. Rose
, 672 F. Supp

. 2d 723, 725 (D. Md

. 2009 ) (r ef

er enc ing amic us bri ef i n t h e s t a t e tr ia l cou rt re cor d). T hir d, af te r the pro sec uti on wit hdr ew the cas e in st at e cou rt , the fe der al dis tr ic t cou rt con si der ing the is sue , on the same re cor d,

re j ect ed the admissi bil it y cha ll enge. See id. Fin al ly, in a dec is ion af te r Rose
, the Ma rylan d app el la te

c o u r t, whil e not ing tha t the def end ant had pro vided a “so le ci ta ti on is to a ci rc uit cou rt dec is ion

exc lud ing fi ngerpr int eviden ce, ” re j ect ed the def

end ant ’s ar gum ent tha t la te nt pri nt ana lysis was not

a genera ll y acc ept ed m et hodo logy wit hin the sci ent if ic comm uni ty. Ma rkh am v. Sta te , 984 A.2d 262 (M d. Ct . Spe c. App . 200 9).

-15-uniform judicial conclusion that latent print identification is g ener ally acc epted i n t h e

scientific c ommunity

. ¶ 70 First, under the Frye fra mework in I llin o i s , v arious critiques that defe ndant highlights from the NRC Report g o to the weig ht of the evide nce, not to its admissibil ity under Frye

. Our supreme court has repe atedly rea ffirme d that under Frye
, our ro l e i s t o evaluate the underlying methodology used to g ener ate the conclusion, not the conclusion rea ched by the examiner: “I f the underlying method us ed t o gen erate an expert’s opinion [i s] rea sonably relied upon by the experts in the field, the fac t f inder may consider the opinion–despite the novelty of the conclusion rende red by the expert.” Donaldson
, 199 I ll. 2d at 77; McKown I
, 226 I ll. 2d at 255. Simi larly
, “[q] uestions conce rning underly ing data, and an expert’s application of g ener ally acc epted techniques, go t o the weight of the evidence, rather than its admissibili ty .” (Emphasis in orig inal.) Donaldson
, 199 I ll. 2 d at 8 1 ; In re Detention of Erbe , 344 I ll. App. 3d 350, 372 (2003). ¶ 71 We acknow ledg e that the NRC Report and the scientific literature sound direc t criticisms
to specific claims from latent print examiners. For example, the report contends that examiners have no justification for “cla ims of absolute, cer tain confide nce” when decla ring a match, a

nd that examiners sometimes te stify to a “zero e rror

rate ,” eve n though the re a re known case s of false identification based on err ors in human judgme nt or in execution of the ACE-V method. NRC Report, supra , at 143-44; see also Gambora
, 933 N.E.2d at 60 (noting that these are “issues about w h i ch the NAS Report is most critica l”). Under I llinois law, [3 ] the forum f

or these c riticisms–directed at the examiner’s stated c onclusion reg ardingwhat his testing reve aled–is trial, n o t a F r ye admissibili ty challeng e. Be fore the jury
, the examining attorney “may expose shaky but admissible ev i d en ce by vigor ous crossexamination or the prese ntation of contra ry evidenc e.” Donaldson
, 199 I l l

. 2d at 88. Donaldson
, 199 I ll. 2d at 81; see also Detention of Erbe
, 344 I ll. App. 3d at 372 (noting that “conc ern with ‘fr equent scoring inconsiste n cies by differ ent evaluators’ [i n actua rial risk
assessment to deter

mine probability

of re offe nding] g oes t o the ex pert’s application of t he
actua rial instruments, not to their g ener al ac cepta nce” ). ¶ 72 Our supreme court has also rec ently emphasized that expert testimony may be excluded

or limit ed under traditional evidentiar y rules, even wher e Frye is not a bar to a dmissibi lity

. In McKown II

, in response to the de fenda nt’s argument “that despite its re levanc e, a f ailed HGN test result ‘prove s too much’ beca use of its ‘aur a’ of scientific cer tainty ,” the court noted that “finding that HGN evidenc e meets th e F r ye s t an dard does not prec lude the possibil i t y that, in a g iven case , the trial court might rule such evidenc e inadmissible on g rounds of undue prejudice .” McKown II ,236 I ll. 2d at 305. Simi larly
, wher e an expert testifies as t o a gene rally acc epted method, the proponent of that testimony has t he burden of laying a proper foundation. Id. at 311. Whil e we express no opinion about the viability of specific eff

orts to exclude claims of zero err or or testimony reg arding the cer tainty of a match

T he “NRC Repo rt ” a nd “ the NAS re por t” bot h r ef erto Nat ion al Res ear ch Co unc il of the 3 Nat ion al Acad emy of Sci enc es, Str eng the nin g Fore nsi c Sci e n c e i n the Unit ed Sta te s: A Pat h Forwa rd (2 009)

.
-16-i n fu t ure case s (which depend on the specific testimony and the support offe red for t h o s e

claims), we reiter ate that a Frye admissibili ty challeng e is not the proper vehicle to question the conclusions an examiner rea ches in a particula r case

. Fur

ther
, in this case , latent print examiner Onstwedde r was thoroug hly cross-e x amined by defe nse counsel about his ability
to draw a conclusion as to the partial palm print in this case , as well as the reliability of latent print identification in light of past mistaken fing erpr int identifications and the subjective
nature of compa

rison. ¶ 73 Second, while there is no doubt that the repor t raises important criticisms of the ACE-V method and otherwise highlig hted are as for further rese arc h, the repor t is not a proxy for the admissibili ty

of latent print evide nce unde r either Fryeor Daubert : “The committee decide d early in its work that it would not be fea sible to develop a detailed ev aluation of eac h discipline in terms of its scientific underpinning
, level of development, and ability to provide evidenc e to addre ss the major ty pes of questions raised in c riminal prosec utions and civil lit iga tion.” NRC Report, supra , at 7.
Nor do the specific critiques of ACE-V, in them s el v es , n ec essarily ref lect a view that the methodology is not “suff iciently est ab l i s h ed to have g ained g ener al acc eptanc e in the particula r field in which it belong s.” (Interna l quotation marks omitted.) Simons
, 213 I ll. 2d
at 529-30. To be sure, the repor t is critica l of the ACE-V methodology and its relianc e on subjective a ssessment of an e x aminer:
“ACE-V provides a broadly stated framework for conducting friction ridg e analy ses. Howeve r, this fra

mework is not specific enough to qualify as a validated method for this ty pe of analy sis. ACE-V does n o t gu ar d ag ainst bias; it is too broad to ensure repe atability and transpar ency ; and does not guara ntee that two analy sts following it will obtain the same results. For these rea sons, mere ly following the steps of ACE-V does not imply that one is proce eding in a scientific manner or producing reliable results.” NRC Report, supra , at 142.
Yet in its summary assessment of print identification, the repor t explains that “[b] eca

use of the amount of detail available in friction ridg es, it seems plausible that a car eful compar ison of two impressions can acc urate ly discern whether or not t h ey had a common source .” Id. And the repor

t acknow ledg es that “[h] istorically
, friction ri dg e analy sis has serve d as a valuable tool, both to identify the guilty and to exclude the i nn o ce n t

. ” Id

. As the S upreme Court of Massachusetts explain ed
, t h e report “does not conclude that fing erprint evidenc e is so unreliable that c ourts should no longe r admit it.” Gambora , 933 N.E.2d at 58. ¶ 74 As in Gambora
, sever al ot her courts have found that the nuanc ed report, while critical of various aspec ts of the ACE-V methodology
, does not in itself establish a lack of g ener al

ac ce p t an ce among the rele vant scientific community or otherwise undermine the uniform body of precede nt reje cting admissibili ty challeng es t o print evidence. S ee St ate v. Dixon
, 822 N.W.2d 664, 674-75 (Minn. Ct. App. 2012) (agree ing with the lower court’s conclusion–af

ter conducting a F

r ye hear ing, hear ing from experts for the State and the defe ndant, and assessing the NRC Report–that the rele vant scientific field widely acc epts the ACE-V methodology and that “[t] he fac t that friction ridg e analy sis can and shoul d be improved and streng thened does not me an that it is inadmissible under Frye ”); Johnston v.

-17-State
, 27 S o

. 3d 11, 21 (F la. 2010) (agree ing with a lower court that the NRC repor t “is

mere ly a new or updated discussion of issues reg arding de v e lo pments in fore nsic testing” and concluding that it “lac ks the specific ity that would justify a conclusion that it provides a basis
to find the fore nsic evidenc e admitted at trial to be infirm or faulty”); United States v. Rose
, 672 F. Supp. 2d 7 2 3
, 725 (D. Md. 2009) (“[T]he Report itself did not conclude that fing erpr in t ev i d en ce was unreliable such as to rende r it inadmissible under Fe d. R. Ev. 702.”); United States v. Stone
, 848 F. Supp. 2d 714, 717-18 (E.D. Mich. 2012) (re jecting defe ndants’ reque st to exclude fing er and palm print evidenc e under Da u b ert , despite defe ndants’ challeng e to the “the continuing viability o f l at en t fing erpr int evidenc e in the fac e of the NAS Commi ttee’s call for more re sear ch”) ; see a lso Pettus v. United States , 37 A.3d 213, 226-29 (D.C. 2012); State v. McG uire
, 16 A.3d 411, 436-37 (N.J. Super. Ct. App. Div. 2011) (both discussing rele vance of NRC Report to admission of non -f i n gerprint scientific evidenc e). We find the c onclusion of the Massac husetts Supre me Court c apture s the pre vailing vie w of the N RC report:
“As our discussion of the NAS Report ref lects, there is tension in the repor t betwee n its assessments that, on the one hand, ‘it seems plausible that a car eful compar ison of two impressions can acc urate ly discern whether or not they h ad a co m m o n source ,’ NAS R eport at 142; but that, on the other, ‘mere ly following the steps of ACE-V do es n o t imply that one is proce eding in a scientific manner or producing reliable results.’ Id. We

are not able to resolve that tension at this time, as the dialogue in the rele vant community
appea rs to be a continuing one, see NAS Report at 144-145 & n. 37, but nothing in this opinion should be rea d to sug g est that the exis tence of the NAS Report alone will require the conduct of Daubert

-Lanigan hear ings as to the g ener al reliability of expert opinions

conce rningfing erpr int identifications.” Gambora , 933 N.E.2d at 61 n.22. 4 ¶ 75 Third, while the repor t repr esents the views of a segment of the scientific community , it does not neatly ref

lect the views of the entirety of the rele vant scientific communi t y

. T his
court has counsele d ag ainst too narr owly defining the rele vant scientific community to those who share the views of the testifying expert. See Bernardoni v. Industrial Comm’n
, 362 I ll. App. 3d 582, 595 (2005) (“The community of experts must include a sufficiently broad sample of experts so that the possibili ty of dis agr ee m en t exis ts.”). But we would make a simil ar mistake if we assume that the criticisms in the repor t are repr esentative of the views of experts throug hout the community

. ¶ 76 Al t h oug h the parties offe r littl e discussion of the makeup of the re l ev an t s ci en t i fi c community
, de f

e n d a n t c o n c e d e s that it includes “for ensic prac titioners,” as well as those with

a scientific background and training “suff icient to allow them to compre hend and understand [t he ACE-V method] and form a judgme nt about it.” That view is g ener ally consistent with decisions i n I llinois considering other methodologies and scientific principles. See People

v. Eyler
, 133 I ll. 2d 173, 215 (1989) (agree ing with lower court that “e l ec t ro p horesis is

Ma ssa chu set ts fol lows a hybri d Fry e

- Daube rt te st tha t fi rs t loo ks to genera l acc ept anc e, but 4 al lows the pro pone nt of eviden ce to use th e r emaini ng Daube rt fa ct ors as “a n al te rna te m et hod of
est abl is hin g rel ia bil it y.” Pat te rso n , 840 N.E.2dat 23.

-18-g ener ally acc epted by fore nsic scientists as a re l i ab le m ethod of detec ting ge netic markers

in blood and is there fore admissible”); People v. Thomas
, 137 I ll. 2d 500, 518 (1990) (“The Partee decision allowed the t rial court in this case to eff ectively take judicial notice of the fac t that the rele vant scientific community
, that is, the community of fore nsic scientists, has deter mined that the proce ss itself is reliable .”); People v. W atson , 257 I ll. App. 3d 915, 926 (1994) (re jecting the State’s arg

ument that the rele vant field includes only fore nsic scientists and concluding that the g ener al acc eptanc e of the proposed DNA profiling evidenc e should be evaluated by scien

ti s ts in th e fields of molecular biology
, population g enetics, and fore nsic scienc e); cf. McK

o w n II
, 2 3 6 I ll. 2d at 300 (whe re the question was whether HGN testing could reliably deter

mine alcohol impairment, relevant scientific fields included medicine, ophthalmology
, optometry , and neurophy siology
, and thus police office r’s testi m ony that “HGN testing is g ener ally acc epted within the law enfor ceme nt community as a fi elds o b ri et y t es t” was irrele vant, for “law enfor ceme nt” is not a scientific field); In re Commitment of Sandry , 367 I ll. App. 3d 949, 967 (2006) (fr aming the question as whether the penile plethy smogr aph testing is g ener ally acc epted “within the field consisting of those

ex p er t s wh o specia liz e in trea ting sex offe nders” ). That view is also consistent with oth er decisions in fing erpr int case s. See, e.g. , Dixon
, 822 N.W.2d at 674 (noting that “re levant

s ci enti fic community ” includes experts who are “ac tually involved in latent-print analy sis and those who actua lly rese arc h the reliability of latent-print analy sis”); Baines
, 573 F.3d at 991 (finding “over

whelming acc eptanc e” among t h e rele vant community for g ener al

acc eptanc e, which the court noted includes “experts in the field,” even though there is “little
prese nce of disinterested experts such as aca demics”) ; Llera Plaza
, 188 F. Supp. 2d at 563- 64 (desc ribing rele vant community as fing erpr int sp ec ialists with technica l or specia liz ed knowledg e); see also Mitchell
, 365 F.3d at 241 (conc luding fr i ction ridg e analy sis is
g ener ally acc epted in the “ fore nsic identification community”). ¶ 77 Whil e defe ndant acc epts that fore nsic prac t i t i o n er s ar e p art of the rele vant scientific community
, he argues that prac titioners’ ”conf idence in the prac ti ce of latent print identification, and its longsta nding use, is insufficient to demonstrate scientific validity and
g ener ally acc eptanc e in the broade r community .” Contrary to defe ndant’s char acte rization, howeve r, including fore nsic prac titioners within the rele vant community does not mean that
g ener al acc eptanc e mere ly depends on testimony reg arding “[r]epeated use by self-inter ested
prac titioners” who lack t h e s ci enti fic knowledg e and expertise to meaning fully assess the ACE-V method. For example, the fede ral court in Rose was prese nted with an amicus brief from 16 aca demicians and prac ticing scientists repr esenting a varie ty of scholarly as well as technica l and scientific disciplines conce rned with th e re liability of fing erpr int individualiz ation evidenc e. See Rose
, 672 F. Supp. 2d at 724. These scientists, arg uing in 5

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(l ast visit ed Apr. 2 2, 20 13) . T he amic i exp la ine d t hat th ey spoke “o n be hal f

o f a col le ge of int er nat ion al pra ct it ion er s and re sea rc her s invol ved in the fi el d of fi ngerpr int ide nti fi cat ion and Me m

ber s of the Sci ent if

ic Wo rking Group on Fri ct ion Ridge Anal ysis, Stu dy and T ech nol ogy (SW GFAST ).” SWGFAS T is an organi zati on tha t est abl is hes st and ar ds for the for ens ic

exa m ina ti on o f p ri nts

.
-19-support of the admissibili ty of fing erpr int evidenc e, repr esente d that they had “au t hored

books and article s in leading scientific, peer -re viewed journals on fore nsics and fing erpr int issues.” ¶ 78 More rece ntly
, as p ar t o f a F r ye hear ing, a M innesota t rial court hear d testimony from
two fore nsic scientists, Glenn L ang enburg and Dr. C ed ri c Ne umann, who opined that the ACE-V method is g ener ally acc epted within the rele vant scientific community

. Dixon
, 822 6 N.W.2d at 667-68. The court also revie wed the testimony of Dr. Sandy Z abell, an expert for the defe nse with a master’ s deg ree in biochemistry and a Ph.D. in mathematics. Whil e of the opinion that “ACE-V is not acc epted as an objective, scientifica lly validated protocol,” Dr. Z abell acknow ledg ed that “it is viewed by many in the scientific community as a framework for subjective assessment with a limit ed amount of detail.” Id. at 670. He continued that “it is not his opinion t hat fing erpr int evidenc e is unreliable or shoul d not be allowed in court; rathe r, i t i s h i s o pinion that it should be allowed with various safe guards about what an examiner can say .” Id. I t was this testimony and the NRC Report–re prese nting not just selfinterested prac titioners with limit ed kn o w le d g e, but experts “ac tually involved in latent-print analy sis and those who actua lly rese arc h the reliability of latent-print analy sis”–on which the
court based its conclusion that experts in the rele vant scientific community widely acc ept the ACE-V methodolog y

. Id. at 674. ¶ 79 Neither party here has offe red a holisti c descr iption of the curr ent views of the scientific community
, and we do not mean to sug g est that we have provided an exhaustive revie w here

. But we reje ct defe ndant’s claim that the various courts considering latent print analy sis have failed to “thoroughly explore” the views of the rele vant community
, including the criticisms listed in the 2009 NRC Report. R ather than simply

concludingthat fing erpr int evidence is admissible ba sed on repe ated use by prac titioners, the courts have hear d fore nsic scientists and experts respond to critiques of the ACE-V method from the NRC R ep o rt and elsewhe re–sometimes afte r ex tensive Frye or Daubert hear ings. See, e.g. , Dixon
, 822 N.W.2d at 667-68; compar e McKown I
, 2 2 6 I l l

. 2 d at 263-65 (re viewing criticisms of seminal case establishing g ener al acc eptanc e of HGN testing where no Frye hear ing was held and co u rt re l ied upon testimony of prosec ution witness alone to establish g ener al

Langenb urg has a B.S. in f ore nsi c sci enc e fr om Mi chi gan Sta te Univer si ty, a m ast er ’s 6 degree i n ana lyti cal che m is tr y fr om the Univer si ty of Mi nne sot a, and was complet ing a Ph.D. in for ens ic sci enc e, dea li ng s pec if ic al ly wit h the ACE- V m et hodo logy, whe n he t est if ie d at th e Fry e h e a r i n g in Dix on

. Dix on , 822 N.W.2 d at 668. Langenb urg “de scr ibe d his own re sea rc h and the

re sea rc h of oth er s te st ing the ac c u r a c y, r el ia bil it y, and valid it y of la te nt-prin t ana lysis usi ng the ACE- V m et hod” and “op ine d tha t la te nt pri nt exa m ina ti on is genera ll y acc ept ed wit hin the re le vant sci ent if ic comm uni ty as con si st ent and highl y acc ura te if app li ed by tr ai ned
, compete nt exp er ts .” Id. Dr. Cedr ic Neumann, an ass is ta nt pro fe sso r in for ens ic sci enc e and st at is ti cs at Penn sylvania Sta te Univer si ty wit h a Ph.D. in for ens ic sci enc e fr om the Univer si ty of Laus ann e, is a tr ai ned la te nt pri nt

exa m ine r who conduc ts re sea rc h with oth er tr ai ned exa m ine rs and ser ves on t he e dit ori al boa rd of the J our nal of Fore nsi c I den ti fi cat ion . In Dix on , the tr ia l cou rt fou nd tha t Dr. Neumann “ ‘c re dib ly
te st if ie d tha t exp er ts in the for ens ic sci enc e comm uni ty wide ly sha re the vi e w t h a t t h e re sul ts of la te nt fi ngerpr int exa m inat io n us in g A C E

- V m et ho do lo gy and con duc te d usi ng app rop ri at e st and ar ds andcon tr ols ar e s ci ent if

ic al ly re li abl e.’ ” Id.

-20-acc eptanc e). The overwhelming conclusion has bee n that these criticisms do not counsel

ag ainst admissibil ity

of latent print evide nce. ¶ 80 Moreove r, the “g ener al acc eptanc e” standard tolerate s criticism of a methodology from experts within the s cientific commun i t y : “[g]ener al accepta nce of methodologie s does not

mea n ‘u n i versa l’ acc eptanc e of methodologie s.” Donaldson
, 199 I ll. 2d at 77. Although a technique “is not ‘g ener ally acc epted’ if it is experimental or of dubio u s validity ,” our supreme court has stated–and rea ffirme d–that “g ener al acc eptanc e does not require that the methodology be acc epted by unanimity
, consensus, or even a majority of experts.” Id. at 78; Simons
, 213 I ll. 2d at 530. Wit hout addre ssing this binding prec edent, defe ndant, rely ing on McKown I

, repe atedly sug g ests that judicial n otice is inappropriate in the absenc e of “unequiv ocal and undisputed” technica l writing s. In McKown I
, howeve r, the court found the views among court decisions to be as varie d as their states of orig in; scientific publications,

reve aling no consensus within the rele vant community
, wer e likewise a poor source to g lean
g ener al acc eptanc e. Her e, the landsca pe is very differ ent. Def

endant has not cited a single published opinion from any state or fede ral court finding latent print evidenc e inadmissible under Frye or Daubert

. This is the same situation our supreme court encounte red in Simons
, wher e judi cial noti ce was ap p ropriate
, not McKown I

. Compare Simons
, 213 I ll. 2d at 539 (“[W] e wer e unable to identify any state outside of I llinois in which expert testimony based
upon actua

rial risk assessment was deeme d in ad m i ssible on the question of sex offe nder

rec idivism .”), with McKown I
, 226 I ll. 2d at 272 (“The se disparate [j udicial] opinions provide insight as t o h o w HGN testing has been addre ssed, but do not prese nt the kind of unequivoca l or u n d isputed viewpoint on the issue upon which a court can take judicial notice.”)

. ¶ 81 Where “g ener al acc eptanc e” does not r equire unanimity , consensus, or even a majority of experts, and those courts considering latent print analy sis have considere d the rang e of views within the rele vant scientific community , we c onclude that the trial court did not err in taking judicial notice of the g ener al acc eptanc e of the ACE-V methodology

. Acc ord In re Commitment o

f S a n dry
, 367 I ll. App. 3d 949, 975 (2006) (taking judicial notice g ener al

acc eptanc e of penile plethy smogr aph testing under Frye
, wher e the testing was widely used,

sever al courts had found that the methodology met the g ener al acc eptanc e test, and scientific literature supported its g ener al acc eptanc e, notwithstandi n g t h e criticism of penile plethy smogr aph testing within the literature and the reje ction of it by sever al courts applying Daubert). ¶ 82 We finally note that defe ndant, at times, attempts to narr ow his o u t ri ght attack on the

acc eptanc e of the AC E-V method, arguing that he is simply challeng ing the acc eptanc e of “ACE-V as applied to palm prints.” The problem is that his criticisms cannot be divorce d from those raised (and reje cted uniformly by courts) as to the ACE-V method itself, whether applied to f

inge rprints or palm prints. Defe ndant see ms to recognize this flaw, for he takes the unqualified position that “fr iction ridg e analy sis is not g ener ally acc epted in the rele vant scientific community .” And while he principally relies on the criticisms of “fri ct i o n ridg e analy sis” in the NRC Report, the repor t does not draw any distinction betwee n friction ridg e analy sis as applied to fing erprints, palm prints, and sol e prints. S ee N RC R eport, supra , at 136 (“F inge rprints, palm prints, a nd sole prints have be en used to identify people for more

-21-than a centur y in the United States. Collectivel y , t h e an al y sis of these prints is known as ‘fr iction ridg e analy sis,’ which consists of experience -base d compar isons of the impressions left by the ridg e structur es of volar (hands a nd fee t) surfa ces.” ). ¶ 83 Def

endant cites to specific criticisms of palm prints included in an af fi davit submitt ed
to the trial court by two print experts, Ly n and Ralph Norman Habe r. The Habe rs argue that there has not been a “deta iled analy sis of how to descr ibe the features of latent palmprints” and that “[t] here are no manuals on palm print compar isons approve d or issued by any of the latent print co m m u n i t y ’s profe ssional, regulatory or advisory org anizations.” Yet in their aff idavit, the Habe rs acknow ledg e that others take the view that the ACE-V method can be applied to palm prints, and the Habe rs more broadly attack the validity of the ACE-V method

as applied to palm prints or fing erpr ints. Also, we see littl e distinction betwee n these specific criticisms and those that have been lodge d at the ACE-V method more g ener ally

. See, e.g. , NRC Repo rt , s u

p r a , at 141 (noting that “the latent print examiner lear ns to judge whether there is sufficie nt detail,” but contending that “more nuance d criter ia are neede d, and, in fac t, likely can be deter

mined”); Dixon
, 822 N.W.2d at 669-70 (noting that Dr. Z abell opined that “ther e is no ACE-V manual and there is no prec ise statement as to how cer tain deter minations are made ”). ¶ 84 The crux of defe ndant’s argument “ vis à vis palm prints” is that the application of the

m et hodology and the conclusion rea ched reg arding a match may be subject to gre at er criticism because “even less is known about ACE-V as applied to palm prints,” especially with the latent palm print here

. For example, defe ndant notes “seve ral anomalies” as to “the partial latent print in this case .” (Emphasis added.) These criticisms are plainly not direc ted
at the g ener al acc eptanc e of the methodology used to identify fing er or palm prints, but are

an attack on Onstwedde r’s ability to apply the method and h is conclusion as to a match betwee n defe ndant’s known print and the partial latent palm print. As noted above, the forum
to a ddress those criticisms is c ross-examination at tr ial, not a Frye admissibili ty challeng e. Cf. People v. Harris
, 314 I ll. App. 3d 409, 418 (2000) (finding that wher e defe ndant did “not challeng e the admissibili ty of [R estriction Fr agment L eng th Poly morphism DNA] testing in
g ener al, nor the calculation of probabilities based on complete matches,” defe ndant’s challeng e to the calc ulation of probabilities from incomplete matches went to weight, not admissibili ty). W e conclude that the t rial cour t properly took judicial notice of the gene ral

acc eptanc e of the ACE-V methodolog y within the releva

nt scientific community

.

¶ 85 I I . DNA Evide nce ¶ 86 Def

endant next argues that he rec eived ineffe ctive assistance of coun s el b ec au s e his attorney s failed to seek a Fryehear ing on the admis sibili ty of DNA evidenc e. The rig ht to counsel guara

nteed by both the United States and I llinois Constit utions includes the rig ht to eff ective assistance of counsel. U.S. Const., amends. VI
, XIV; I ll. Const. 1970, art. I
, § 8. To
preva il on a claim of inef fec tive assistance of counsel, defe ndant m ust satisfy the two-pa rt test set forth in Strickland v. W ash i n g t o n : fi rst, “def

endant must show that counsel’s
p e rfor mance fell below an objective standard of rea sonablene ss, ” a n d s e c o n d
, d e f

e n d a nt mu s t show “ther e is a rea sonable probability that, but f o r c o u n sel’s unprofe ssional err ors, the result

-22-of the proce eding would have been differ ent.” People v. Manning
, 2 4 1 I ll. 2d 319, 326

(2011) ( citing Strickland v. W ashington , 466 U.S. 668, 688 (1984)). ¶ 87 Counsel’s perf ormanc e is measure d by an objective st an d ar d o f co m p et en ce u nder
preva iling profe ssional norms. Id. In considering whether counsel’s perf ormanc e was defic ient, “a court must indulge a strong presumption that counsel’s conduct falls within the wide rang e of rea sonable profe ssional assistance; that is, the def endant must overc ome the presumption that, under the circ umstances, the chal le n g e d action ‘mig ht be considere d sound trial strategy .’ ” Strickland
, 466 U.S. at 689 (quoting Miche l v. Louisi ana , 350 U.S. 91, 101 (1955)) ; People v. Evans
, 186 I ll. 2d 83, 93 (1999). The decision whe t h er t o pursue an admissibili t y ch all eng e under Frye is a matter of trial strategy

. People v. Gordon
, 378 I ll. App. 3d 626, 639 (2007); see also People v. Bew
, 228 I ll. 2d 122, 127-28 (2008) (noting that the decision whether to file a motion to suppress is a matter of t rial st rate g y ); cf. People v. Perry
, 224 I ll. 2d 312, 344 (2007) (noting that decisions reg arding “ ‘what matters to object
to and when to object’ ” are matters of trial strategy (quoting People v. Pec oraro , 175 I ll. 2d 294, 327 (1997)) ). Our supreme court has direc ted t hat counsel’s s t rate g ic decisions made afte r an investigation of the law and the fac ts are “virtua l l y unchalleng eable ” ( People v. Palmer
, 162 I ll. 2d 465, 476 (1994)) or “virtually unassailable” ( People v. Ramsey
, 239 I ll. 2d 342, 433 (2010))

. In other words, matters of trial strategy will not support a claim of ineffe ctive assistance of counsel unless counsel failed to conduct any meaning ful adver sarial
t es t i n g. People v. Guest
, 166 I ll. 2d 381, 394 (1995); People v. Patterson
, 217 I ll. 2d 4 0 7
, 441 (2005). “[T] he defe ndant must prove that counsel made err ors so s erious, and that

cou n s el’s perf

ormanc e was so defic ient, that counsel was not functioning as the ‘counse l’
guara nteed by the six th amendment.” People v . Richardson , 189 I ll. 2d 401, 411 (2000). ¶ 88 Under the s eco n d p ro n g o f Strickland
, defe ndant m ust prove that there is a re asonable probability that the resu l t o f t h e proce eding would have been differ ent without counsel’s unprofe ssional error s. Strickland , 466 U.S. at 694. In order to establish prejudice resulting from failure to move for a Frye hear ing, “ ‘a defe ndant must show a rea sonable probability that: (1) the motion wo u l d have been gr anted, and (2) the outcome of the t rial would have been differ ent had the evidenc e been [ex cluded].’ ” Bew
, 228 I ll. 2d at 12 8 -29 (quoting Patterson , 217 I ll. 2d at 438); People v . Givens , 237 I ll. 2d 311, 331 (2010). The failure to file a motion does not es t ab l i s h incompetent repr esentation when the motion would have been f utile. Patterson , 217 I ll. 2d at 438. ¶ 89 In this case , def en d an t ar gu es that the amount of DNA used by the I SP laboratory to g ener ate the D NA prof

ile was so small that it fell below the I SP l aboratory ’s standar ds for reliable test results and possi bly qualified as low copy number (L CN) DNA. Acc ording to defe ndant, beca

use using these amounts of DNA to obtain a profile is not g ener ally acc epted within the scientific community , his attorney s were ineffe ctive by failingto r equest a Frye hear ing. The State responds that defe ndant cannot overc ome the strong presumption that his attorney s made the leg itimate strateg ic choice to ref rain from seeking a Frye hear ing on L CN DNA testing, wher e t h e p re t rial discovery in this case demonstrated that the sample siz e could not be considere d “low copy number” and was actua lly within the l ab o ratory ’s standards f

or re liable t est results. The State fur ther a rgues that def

endant c annot show that there is a rea sonable probability that a Frye hearing would have been g rante d or would have

-23-resulted in the exclusion of the DNA evidenc e, wher e the underly ing methodology has been
g ener ally acc epted in the sc ientific community and is neither ne w nor nove l.

¶ 90 A. B ackground of Te sting Method ¶ 91 The testing that g ener ated the DNA profile in this case used short tandem repe at (STR) DNA mar kers, whic h have be come popular for f orensic D NA ty

ping:
“DNA rese mbles a twisted ladder with rung s of the ladder made of chemica ls call ed nucleotides. DNA has four differ ent ty pes of nucleotides (A: ad en i n e, T : thy mine, G:
guanine, and C: cy

tosine) that form interlocking pairs. D. Kaye & G. Sensabaugh, Refere nce Guide on DNA Evidenc e , Refer ence Manual on Scientific Evidence 485, 491 (2d ed. 2000). It is the order (seque nce) of these building b l o ck s that deter mines eac h person’ s g enetic c hara cter istics. The g reat ma jority of DNA is ide ntical from person to person but fore nsi c scientists commonly examine 13 specific reg ions, or loci, wher e

cer tain nucleotide patterns are repe ated ag ain and ag ain. These patterns are called ‘Short Tande m Repeats’ (STRs). The number of repeate d sequenc es determines the l eng th of

an STR. This leng th of repe ated sequenc es , often called an allele, may vary betwee n people and is what analy sts measure and use for compar ison. D. Kaye & G. Sensabaugh, Refere nce Guide on DNA Evidenc e , Refer ence Manual on Scientific Evidence 485, 494 (2d ed. 2000).” People v. W illiams
, 238 I ll. 2d 1 2 5
, 1 3 0 n .1 (2010), aff’d
, W illiams v. Illinois , ___ U.S. ___, 132 S. C t. 2221 (2012).
In the simplest ter

ms, a n allele is a g enetic va

riation at a pa

rticular loc us, or location in the DNA. An individual inher its one allele fr om his or her mother a nd another

from his or her fathe r, and thus, except in ra re c ircumstance s, all individuals have two alleles in a ny g iven locus. When both inhe rited alleles from eac h pare nt a re identical, a person is c onsidered to be homozy g ous at that locus. When the inherited alleles are differ ent, a person is heter ozy g ous at t hat locus. See g ener ally J ohn M. Butler
, For ensic DNA Ty ping: Biolog y , Tec hnology , and Ge netics of STR Marke rs, 17-23 (2d e d. 2005). ¶ 92 In 1998, the I SP labora tory was using the AmpF l STR Profiler Plus PCR Ampl ification Kit (Profiler Plus kit) to test DNA. The “PCR” in the kit name desig nates “poly mera se chain

rea ction,” a proce dure th at allows a sm all amount of DNA to be amplified into an amount larg e enoug h for ty

ping. See United States v. Davis
, 602 F. Supp. 2d 658, 664 (D. Md. 2009) (“PCR [t esting ] is used to am p l i fy t arg eted loci of the sample of DNA by replicating the
proce ss by which DNA duplicates itself natura lly

. Th us, the lab is able to produce a

su b s t an tial number of specific
, targ eted seg ments of DNA which can then be ty ped and
compar ed.”)

. The DNA seg ments amplified for purposes of PCR ty ping are ones whi ch exhibi t g enetic variation, which make them useful for distinguishing individuals. W illiams
, 238 I ll. 2d at 131; United States v. Be asley , 102 F.3d 1440, 1445- 46 (8th Cir. 1996). DNA kits like the Profiler Plus combine multipl e PCR s into one rea ction and targ et sever al distinct loci. The number of repe ats in a spec ific STR sequence prese nt at a g iven locus, combined

over a desig nated number of loci, cre ates a unique DNA profile of an individual. The Profiler Plus ki t tests nine loci, plus a marker indicatingg ender

.

-24-¶ 93 B. Te sting in This Case

¶ 94 In August 1998, the I SP laboratory rec eive d a b o x co n t ai n i n g food items that wer e

rec overe d on J anuar

y 11, 1993, from a trash container at the crime scene

. Debr a Depc y znski
, a fore nsic scientist in the Biolog y -DNA section of the I SP labora tory , unseale d the box and chose five chicke n bones. She desig nated this group “29A” and labeled the bones A throug h E. She swabbe d eac h bone with a separ ate piece of filter paper and tested eac h swabbing for the prese nce of amylase, an enz y m e i ndicative of saliva. Only bones C and D indicated
amylase, and Depc y

znski swabbe d bones C and D with four more piece s of white filter paper

eac h. She id en t i fi ed the swabs “29A1” (bone C) and “29A2” (bone D), and submitt ed the swabs to ana ly st Cecilia Doyle. ¶ 95 Doyle pl ace d three of t he 29A1 swa bs and three of the 29A2 swabs in a chemical bath
to extract any DNA. Doyle then resolubilized the extract from 29A1 in 50 microliters of buffe r liquid and did the same for the 29A2 extract. At this stag e, known as the quantitation stag e, Doyle conducte d two tests: a yield g el test and a slot blot test. As to the yield g el test, Do y le explained that it would detec t if DNA is prese nt and was also useful for estimating whether the DNA may be fra g mented due to deg rada tion. The y i el d gel test only detec ted deg rade d DNA. ¶ 96 Doyle next employ ed a slot blot assay called the QuantiB lot Human DNA Quantitation Kit, which quantifies DN A by visual compar ison of sample band int ensities with the band i n t en sities of st andar ds, produce d from known amounts of DNA. See Davis
, 602 F. Su p p

. 2d at 669 (noting th at t h e Qu antiBlot m ethod “requires the analy st to estimate t he amount of DNA in eac h sample by compar ison with a known refe renc e standa rd”) . The darker the bands, the m o re DNA is prese nt. The DNA at this stag e is called the “template DNA” or “[s] tarting DNA template” (B utler, supra , at 64-68), measure d in picog rams (pg ) or nanog rams (ng ); 100 pgis 0.1 ng. ¶ 97 Doyle conducte d the slot blot test using various amounts of liquid DNA samples der ived from 29A1 and 29A2. When she loaded 1 microliter and 5 m icroliters for both 29A1 and 29A2, the amount of DNA detec t ed wa s l es s t han 0.15 ng

. When Doyle ran a third assay , loading 10 microliters, she detec ted a differ ence for the 29A2 s am p l e. Whil e the 29A1 sample still rec orded less than 0.15 ng of DNA, the rea ding for the 29A2 sample was that it contained less, but not much less, than 0.15 ng of DNA. Doy le noted this by writing double left-pointing arr ows “<< ” in front of “0.15” for 29A1, but a si ng le l eft-pointing arr ow “<” in front of “0.15” for 29A2. Doyle explained th e d i ff er ence in these desig nations: “In compar ing the two ag ainst eac h other, as well as ag ainst the .15 nanog ram standard, one was of g reater intensity

than the other and both were less intense than the .15 na nog ram. It was an indication to me that ther e wa s a diffe renc e in intensity betwee n the two.” ¶ 98 Doyle ag ain consulted with Dr. Fish. Doyle explained that labora tory policy require d that she consult a supe rvisor whe n proce eding with amplification whe re the amount of starting template DNA was not in the laboratory ’s minimum quantity standards for optimal results, “whe re you would most likely alway s g et a full profile.” Ba sed on internal validation studies, the I SP laboratory rec ommended betwee n 0. 6 an d 2 ng per microliter of input DNA for amplification, with an optimal rang e o f b etween 1 and 2.5 ng per microliter for fore nsic

-25-work. The manufa cture r of the Profiler Plus ki t likewise specif

ied input betwee n 1 and 2.5
ngof DNAfor optimal re sults. ¶ 99 The next step was to set up the PCR amplification. Doyle conce ntrated the rema ining 29 microliters of th e 2 9A1 solution down to 20 microliters, and she did the same for the

rema ining 29 microliters of the 29A 2 solution. Accordingto her labor atory workshee t, the
t o t al amount of DNA in eac h 20-microliter sample was “<< 0.5 ng .” Doyle testified th at “base d on the quantification, it was the –the actua l e stimate of the DNA was a littl e bit less than t he lowest standard run on the slot blot, so Iwas una ble t o deter

mine a good estim ate of the quantity of DNA that I had prese nt, so I took the rema ining sample and conce ntrated it down to 20 microliters, which was the maxi mum volume that could be taken i n to the amplifica t i o n s t ep, and I amplified 20 microliters for eac h of those samples.” She further testified that in the ampli fication step, wher e the Profiler P lus kit was used, “spec ific STR

are as of the D NA ar e isolated–or a re ta rg eted, a nd many copies of the m are made.” ¶ 100 Doyle then loaded the amplified produc ts f rom 29A1 and 29A2 into a n AB I Prism 310 Gene tic Analy

zer, which wa s known as “the J oliet Instrument.” Doy le testified that, in the
most basic terms, “[t] he g enetic analy zer is an instrument that allo ws us to look at the amplified DNA.” Doyle then g ener ated an “ele ctrophe rog ram,” a computerized “g raph that display s a series of d i ff

er ent-colored peaks of di ffe rent heights.” Roberts v. United States
, 916 A.2d 922, 927 (D.C. 2007). The elec tropherogram lists an “a llele ca ll,” the number of
repe ats an allele has, and also lists the amount of fluoresc ence detec t ed for that particula r al l el e m easur ed in relative fluoresc ent uni ts (RFUs)

. “A relative fluoresce nt unit (RFU) i s a measure of the amount of ampli fied [ DNA ] p re sent in a test sample.” Commonwealth v. Greine d er , 936 N.E.2d 372, 382 n.3 (Mass. 2010). The amount of fluoresc ence is also
prese nted in g raphic form. See State v. Bander
, 208 P.3d 1242, 1246 (Wash. Ct. App. 2009) (“When an allele is detec ted at a particula r locus, it is repr esente d as a peak plotted at a point along the elec tropherogram’s X-ax is that corr esponds to a particula r locus. The intensity at which allele s fluoresc e is ref lected in the pe ak heights alongthe Y-ax is.”). ¶ 101 Fr om the elec tropherogram, Doyle could see that ea ch s am p l e co n tained DNA f rom multipl e contributors beca use there wer e more than two peaks at cert ai n l o ci

. As Doyle explained, she would g ener ally expect one or two alleles at eac h locus: “I f you–at that are a of the DN A, you inherited a differ ent allele from y our mom than y ou did from your father, then you’d have *** two peaks, or two alleles. I f you inherited the same DNA alleles from both pare nts, then y ou would only exhibi t one peak at that are a of DNA.” In this sample, howeve r, Doyle explained that “ther e was a profile that had fairly high peaks, so it was a

m aj o r co n t ributor, one individual had contributed more DNA. Then, there wer e also very minor peaks
, very small, close to the baseline, that was contributed by a second person.” Kenne th Pfoser also testified that he could easily distinguish the major contributor’s profile based on RFUs and peak hei g hts. Pfoser testified that the profile for the major contributor

on bone C was identical to the major contributor on bone D, an d h e t es t ified that these profiles we re ide ntical to defe ndant’s prof ile.

-26-¶ 102 C. The Amount of DNAin the Samples

¶ 103 Def

endant now asser

ts that where the slot blot test showed that “<< 0.5 nanog rams” of DNA wer e prese nt in the sample, counsel was defic ient for failing to reque st a Frye hear ing. Acc ording to defe ndant, testing this low amount of DNA may produce unreliable results, and such testinghas not g ained wide sprea d scientific a cce ptance

. ¶ 104 Def

endant spe cifica lly

argues that the amount of DNA tested he re pote ntially qualifies

as low copy number (L CN) DNA. The parties g ener ally ag ree that testing less than 0.2 ng of DNA qualifies as L CN, though they acknow ledg e diverg ent opinions on the matter. See United States v. W

illiams
, No. CR 05-920-RSWL
, 2009 WL 1704986, at *3 (C.D. Cal. 2009) (“[T]he Court finds that L CN testing can be define d as t esting conducted on an amount of i n p u t DN A that is less than .1 ng or .2 ng

. Both parties ag ree with this definition and the weig ht of scientific authority supports it.”); Davis
, 602 F. Supp. 2d at 669, 672 (finding that there would have been L CN testing if less than 1 nanog ram of DNA was tested, but noting “dueling definitions” rang ing from l ess t han half a nanogr am t o l es s than 0.1 nanog rams); Butler
, supra , at 167 (noting that L CN DNA testing “ty pically ref

ers to examination of less than 100 p g o f i n put DNA” ); see also Charlotte Word, W hat Is LCN ? Definitions and Challenges ( 2 0 0 9 )
, htt

p :/ /w ww

. p r o me g a

. c o m/ r e s o u

rce s/articles/prof

iles-in-dna/2010/whatis-lcn-de finitions-and-cha lleng es/ (last vi sited Apr. 22, 2013) (“ Samples containing <100- 200 pg of t otal DNA available for amplification fall into the rang e g ener ally considere d to be L CN DNA by most pra ctitioners. *** More rec ently
, L CN has been used to ref er to a ny DNA sample or DNA profile wher e stochastic eff ects (e.g., allele and locus drop-out, heter ozy g ous peak heig ht imbalance and elevated stutter peaks) are likel y p re s ent and/or wher e the alleles detec ted are below a laboratory -def in ed stochastic threshold ***.”). In defe ndant’s view, 0.2 ng “would likely qualify as much less than .5 ng ,” and thus the testing here could be c lassified as L CN testing. ¶ 105 Conducting PCR amplifi ca t i o n o n L C N DN A m ay p ro du ce “s t o chastic effe cts,” i m p ac t i n g the reliability and repr oducibility of the results and further complicating their interpre tation. See Davis
, 602 F. Supp. 2d at 6 68 (re citing expert testimony that “[f]our problematic eff

ects are often seen with testing perf ormed below the stochas t i c threshold:
exagg erated stutter, peak height imbalance
, allelic drop-in and allelic drop-out”); Butler,
supra , at 168 (“[A]ppli cation of L CN results should be approa ched with caution due to the possibili ties of allele dropout, allele drop-in, and incre ased risks of collecti o n -b as ed and laboratory -base d contami n ati on.”). Allele “drop- out” occur s when there is a failure to amplify an allele which is actua lly presen t , b u t d o es not appea r on the elec tropherogram; alternatively
, contamination may cause pref ere ntial amplification of ro gu e alleles, which
appea r to bec ome par

t of the DNAprofile ( allelic drop- in). Butler
, supra , at 169. 7

Def end ant off

er s a hypothe ti cal exa m

ple of al le li c dro p- out

. T he pro fi le s of samples 29A1 7 and 29A2 re fl ect homoz yg osi ty at loc i vWA and D18, m ean ing tha t two of the same al le le s (16 and 17, re spe ct ively) app ear at the se loc i. T he ide nti fi ed pro fi le for def end ant is 16, 16 at vWA and 17, 17 at D18. I f the samples wer e act ual ly 16, 17 at vWA or 17, 19 at D18–a nd al le le dro pout occ urr ed,

cau si ng the 17, the 19, or bot h to dro p out

– d e f e n dan t woul d be fa ls el y inc lud ed as a pos si ble

con tr ibu torwhen in fa ct he woul d ha ve been exc lud ed wi tho ut the al le li c dr opou t.

-27-¶ 106 Moreove r, reg ardle ss of whether the amount of DNA here qualifies as L CN, defe ndant

argues that the amount of DNA detec ted by the slot blot test was well below the laboratory ’s internally validated minimum st andards for input DNA ( i.e.
, 1 to 2.5 ng per microliter for fore nsic work or 0.6 to 2 ng per microliter g ener ally ). Def endant argues, and the State does
not dispute, that there is an optimal rang e of DNA quantity for the Profiler Plus and simil ar kits to avoid stochastic eff ects such a s allele drop- out and drop-in. The parties r efe r to this level as the “stocha stic threshold.” Davis
, 602 F. Supp. 2d at 668; Butler
, supra , at 65 (“The best results *** are obtained if the DNA template is added in an amount that corr esponds to the conce ntration ra n ge d es i gn ed for the kit.”); id. at 50 (noting that “Profiler Plus *** specif[ies] the addition of betwee n 1-2.5 ngof template D NA for optimal results.”).

¶ 107 D. Counsel’s Perfor mance ¶ 108 There is no question that defe nse counse l was aw are that Doyle went forwa rd wit h the amplification even though the amount of DNA, as measure d at the quantitation stag e, did not meet t he laboratory ’s opt imal quantity standards for t esting
, i.e.
, betwee n 1 and 2.5 ng per microliter. Defen d an t would have the analy sis end there and conclude that, in light of the
poss i b i lity of stochastic eff ects, the failure to mount a Frye challeng e was a failure that rende rs counsel’s perf

ormanc e defic ient by an objective standard. As defe ndant argues, “testing o f s u ch a l o w amount of DNA, below the DNA kit manufa cture r’s and the I SP’s internally validated standards for reliable results, was ripe for a Frye hear ing.” Acc ording to defe ndant, there is no “basis in the rec ord” to sug g est “that coun s el ’s d ec i s ion was the product of sound tria l strateg y .” People v . Litt le , 322 I ll. App. 3d 607, 613 (2001). ¶ 109 Bu t our revie w so far has not g iven a complete acc ount of the rec ord, the s ci en t i fi c literature
, or counsel’s perf ormanc e. As the State points out on appe al
, an d as Doyle explained during her deposition, there are rea sons to g o forwa rd with the amplification stag e

even when the templ ate DNA appea rs small by the QuantiB lot test. One issue is simply sensitivity of t he QuantiBlot: “Eve n when no results are seen *** some fore ns i c scientists still g o forwa

rd wi t h DN A t est ing and obt ain a succe ssful STR profile. Thus, the s lot blot
assay is not as sensitive as would be pref err ed.” Butler
, supra , at 52; Davis
, 602 F. Supp. 2d at 669 (“ Both pa

rties agree that [QuantiBlot] is a visual, inexact c omparison that is ‘not as sensitive as wo u ld be pref err ed.’ ”). Another issue is the possibili ty of undere stimation, which was a particula

r conce rn in this case , when the DN A wa s fr agmented due to deg radation. This was not lost on defe nse counsel, who explored the issue at Doyle’s Marc h 10, 2005 deposition: “Q. The amount of DNA that y ou wer e seeing there
, i t co u l d h ave been a small
amount of DNA beca

use there was only a small amount deposited, or it could have been a small amount of DNAbeca use there was de g radation; is that rig ht?
A. The slot blot could have only been detec ting a small a mount of DNA beca

use of the deg radation. The site that the probe binds to from the quantiblot kit, if that are a of DNA was deg rade d and there wasn’t enoug h of those fra g ments available in the sample, then you g et an unde restimation of the qua ntity

. Q. But at this point you didn’t know what the small amount o f DN A wa s du e to,

-28-whether it was–whethe r there wasn’t much D NA ther e to begin or whether it had been deg rade d?
A. I knew it was deg rade d from the yield g el, but y ou’re corr ec t , I didn’t know t he
exact rea son why

the slot blot results were a s they wer e.” Doyle had a

simil ar e x chang e with code fenda nt’s attorney : “Q. Why do both of them? Why not just do the slot blot? What does the y ield g el tell
y ou that the slot blot doesn’t?
A. Whether the sa

mple is deg rade d. Q. And does that chang e the wa y you handle it?
A. It could, yes. Q. And how would it chang e the way y ou handle it? When you say deg rade d DNA, what do you do differ ently ?
A. You take that into acc ount when y ou’re l o o k i n g at slot blot results. In this case there was [ sic ] appar ently s am ples there
, but not–it was less than the 0.15 nanograms. That could be beca

use i t was a deg rade d sample, that the quantity was g oing to be undere stimated beca

use of de g radation. Q. Degradation causes DNA to be under estimated?
A. It can. Q. Are there validation studies about that, how degradation–
A. I t’s done throug hout the community

. I am sure the re a re validation studies, but I couldn’t quote you them.” Doyle simil arly testified at trial that “it could be that the are as of DNA being targ eted for the slot blot itself was deg rade d, and so I wa s n ot g etting–I was ge tting an undere stimation of the amount of DN A pre sent.” ¶ 110 Moreove r, the State argues that by g oing forwa rd with amplification despite the slot blot result, there would be another metric that could establish that the starting template DNA was optimal an d above the stochastic threshold: fluoresc ence intensity

. As noted above, Doyle
g ener ated an elec tropherogram, which reve aled the amount of fluoresc ence detec ted for that particula r allele and the amount of amplified DNA prese nt in a test sample. The fluoresc ence intensity enable d both Doyle and Pfoser to distinguish the major donor’s DNA profile from that of the minor contributor. See Butler, supra , at 159 (“[P ]eak are as and he ights *** c an in most case s be related back t o the amount of DNA template components included i n the mix ed sample.”)

. That fl u o re s cenc e also could be connec ted with the amount of starting template DNA, as testing c an dete rmine what de g ree of fluoresc ence can be obtained from
vary ing known amounts of startingtemplate DNA

. ¶ 111 Her e, the I SP lab o ra t o ry co n du ct ed its own study that deter mined what deg ree of fluoresc ence is obtained from vary ing known amounts of starting template DNA when using Profiler Plus and the J oliet Instrument. On November 28, 2005, defe nse counsel subpoenae d

a n d o btained the J oliet Instrument’s validation studies, which inc lu d e d th e Jo li e t I n s tr u me nt’ s sensi t i v i t y study

. The laboratory conducte d three runs on the prepa red samples, which

-29-showed that 2.5 ng of input DNA yields peak heig hts betwee n 500 and 4,000 RFUs, and that

input DNA of 1.25 ng produce s peak heig hts betwee n 270 and 1,800 RFUs. The State argues that wher e the tests on bone C g ener ated peak heig hts betwee n 266 and 1477 RFUs and bone D yiel d ed peaks betwee n 572 and 3,133 RFUs for the so-ca lled major donor, the RFU

rea dings corr espond to approximately 1.25 ng of DNA for bone C and approximately 2.5 ng of DNAfor bone D. ¶ 112 T h u s , t h er e ar e at l ea s t t wo related rea sons Doy le may have g one forwa rd wit h amplification afte r the slot blot g ave a rea ding of less than 0.5 nanog rams: (1) the possibili ty that the QuantiB lot assay was undere stimating the amount of DNA in the degrade d sample; and (2) the pos sibili ty of obt aining a result above the stochastic threshold, as m easur ed by RFUs. I n other words, Doyle (and Dr. Fish) decide d to proce ed with amplification i nstead of adoptinga “stop testing ” appr oach:
“The ‘stop testing’ approa ch beg s the question of how do y ou know that y ou are too low
to obtain reliable re s u l t s ( i.e.
, information that acc urate ly ref lects the DNA sample). There are two primary points in the DNA- testing proce ss wher e DNA reliability may be assessed: 1) at the DNA quantitation stag e prior to perf orming PCR amplification of the short tandem repe at (STR) marke rs of interest, o r 2 ) during examination of peak heig hts–and peak height ratios in heter ozy g ous loci–in the STR p ro fi l e obtained. An empirica lly deter

mined threshold (usually termed a ‘stochastic threshold’) may be used
at ei t h er the DNA quantitation or data interpre tation stag e to assess samples in the potential ‘dang er zone’ of unreliable results. For ex am p l e, if the total amount of

measure d DNA is below 150 pg , a labo ra t o ry may decide not to proce ed with PCR
amp l i fi cation, assuming that allelic drop-out due to stochastic eff ects is a very rea l possibili ty

. Alternatively
, a laboratory may proce ed wi th testing a low-leve l DNA
samp l e, then evaluate the peak heig ht signa ls and peak height ratios at heter ozy g ous loci.” J .M. Butler & C.R. Hill, Scientific Issues W ith Analysis of Low Amounts of D NA (2010), http:// www.pr omeg a.com/re source s/articles/profiles-in-dna/2010/ scientificissues-with-ana ly sis-of-low-a mounts-of-dna/ ( last visited Apr. 22, 2013).
S ee also Br

uce Budow le et al.
, Validity of Low Copy Number Typing and Applicati o n s t o Forensic Scienc e , 50 Croat. Med. J

. 207, 209 (2009) (“Ty pically
, minimum amounts of DNA template are rec ommended *** so that stochastic eff ects can be reduc ed to manag eab le levels. Howeve r, since variation in the quantitation of template DNA and pipetting volume inacc urac ies can impact the amount of template DNA place d in a PCR
, a stochastic interpre tation threshold is used instead for STR ty ping. * * * A m i n imum peak heig ht (or

are a), which is established by in-house labor atory

validation studies, serves a s a stochastic control. Those peaks below this threshold are not interpre ted or are interpre ted with extreme caution for limit ed purposes.” ); David H. Kaye & Ge o rge F. Sensabaugh, J r., Refere nce Guide on DNA Evidenc e , at 505 (“Whether a particula r sample contains enoug h human DNA
to allow ty

ping cannot alway s be predic ted in advanc e. The best strategy is to try ; if a result is obtained, and if the c ontrols (samples of known DNA and blank samples) have behave d
proper ly , then the sample ha d enoug h DNA.” ). ¶ 113 W e em p hasize that the rec ord shows that defe nse counsel rec og nized a co n n ec t i o n betwee n DNA quantity
, as measure d by the slot blot, and the possibili ty of stochastic eff ects,

-30-when he cross-e x amined Doyle at trial: “Q. Now , the other thingbesides degradation that y ou do, the yield g el and the slot blot for is quanitation [ sic ]. You’re try ing it [ sic ] figure out how m uch y ou have there; rig ht? A. Try to ge t an estimate of the amount of DNAprese nt in the sample. Q. And, in this case , both samples, the 29A1 and the 29A2, came out to be less than the lowest compar ison thing that y ou had on the g el; rig ht? Or on the slot blot; is that rig ht?
A. Yes. On the slot blot, there are a series of known DNA quantities, and I compar e the quantities–the samples–the evidenc e samples to these known quantities in an attempt to estimate the amount of DN A pre sent. * * * Q. I mean, we ’re talking a

bout essentially

microscopic stuff

here ; are we not?
A. Ver y tiny amounts. Q. You couldn’ t see it with the nake d eye; could you?
A. No. Q. And that’s–it’s so small that at the time y ou wer e doing the testing in this case , the I llinois State Police had not eve n been va lidated for a mounts that small; rig ht?
A. Well, I revie wed the validation proce dures, and in the validation study for STRs,
amounts smaller than .15 nanog rams had been looked at to deter m i ne what the lowest cutoff le vel was where y ou could obtain a f ull profile. Q. Okay . And–so, in that sense it was va lidated. I s that what you mean?
A. I t was looked at as part of that validation study

. A deter mination was made of .3– *** well, 1 nanog ram to 1.5 nanog ram was the ideal targ et amount of DNA, and that’s, I believe, throug h all of t he samples d o wn t o

. 3 nanog rams of DNA, a full profile was obtained.
Be low that, loci started to drop out, or a n allele star

ted to not be detec ted.” Counsel also connec ted slot blot sample siz e with results and further soug ht to establish that such a small amount of D NA could have come from an outside sour ce: “Q. And the amounts of DNA make a differ ence , ultimately
, or can make a differ ence in what sort of re sults y ou g et in the testing ; rig ht?
A. They can. It depends on why the sample is deg rade d. In this case , it could be that the ar ea s o f DN A being targ eted for t he sl ot blot itself was deg rade d, and so I was not g etting–I was g etting a

n undere stimation of the amount of DNA pr esent. Q. Now, beca

use of the small amounts of DNA that are nece ssary in order to g et

some kind of result, you can g et the DNA–you could g et a DNA off of simply –well, for example if the chicke n had been laid out an [ sic ] a table somewher e, and there was DNA on that table, the c hicken c ould pick up the DNA f rom the table; c ould it not? ” Doyle eventually answe red: “I suppose i f t h e condit ions wer e correc t. I f t here was a lot of DNA; if it was moist. There has t o b e s o m e transfe r. I f y ou’re putting something dry on

-31-something dr y , the cha nce of transfe r is very

littl e.” ¶ 114 I t may be that, fac ed with a possibly undere stimated sample, the scientific literature , and the sensitivity study
, defe nse counsel conclude d that a reque st for a Frye hearing would not likely be g rante d or, if g rante d, the hear ing would not result in the exclusion of evidenc e beca use t here was a considera ble chance the t es ting here was accepta ble practice. Perhaps defe ndant’s attorney s thought that by initiating a Frye challeng e, they would have provoked

an argument from the State that the sl o t b l o t reading was not a problem beca use the peak heig hts sug g ested that the sample was above the stochastic threshold. Cf. Commonwealth v. Greinede r , 936 N.E.2d 3 7 2
, 403 (Mass. 2010) (holding that defe nse counsel may have wanted to forg o a Frye challeng e to tip off the prosec ution about a particula r line of attack)

. That approa ch is plausible, as counsel did not abandon an attack on Doy le’s choice to g o ahea d with testing when the slot blot reve aled a small amount of DNA, and counsel used that
p o i nt at trial to question whether such a small sample could have been picked up fr o m a contaminated sour ce. ¶ 115 In sum, in the rec ord befor e us, we have: (1) an explanation by Doyle reg arding why the slot blot, which may not be a particula rly sensitive metho d o f m ea s u reme nt, might have undere stimated the amount of DNA at the quanti t at i on stag e; (2) scientific literature
sug g esting that RFU peak heights can be used as a ref ere nce point to show a lack of stochastic eff

ects; (3) a validation study for the J oliet Instrument listi ng RFU peak heig hts, which could serve as a stocha stic interpre tation threshold; and (4) c ross-examination from defe nse counsel attacking the decision to g o forwa rd af ter the Q uantiBlot testing showed a low sample siz e, exposi ng possible acc urac y issues. Al t h o u gh we cannot say with any

cer tainty what materia ls counsel revie wed or what strateg ic calls counsel made, cer tainty is
not require d: we must enter tain a strong presumption that counsel’s actions might have been the produc t of trial strategy

. Strickland, 466 U.S. at 689; Evans , 186 I ll. 2d at 93. ¶ 116 Def

endant responds that peak heig hts a re “not nece ssarily” a reliable assessment of the
amount of DNA prese nt in this sample or otherwise do not show that the sample is above the stochastic threshold. Def

endant cites a 2010 article that acknow ledg es “tar g et DNA amount” and “pea k heig ht of alleles” may be used as criter ia to deter mine L CN testing, but advocates “def ining L CN ty

ping based on the values wher e peak heig ht imbalance bec o m es exagg erated” and argues that “[h] eter ozy g ote peak heig ht imbalance is a better criter ion for defining the conditions wher e stochastic eff ects occur .” Br

uce Budow le, Low Copy Number T y p i n g S t i l l L a c k s R o b u s t n e s s a n d R e l i a b i l i t y ( 2 0 1 0 )
, http:// www.pr omeg a.com/re source s/articles/prof iles-in-dna/low-c opy -number- ty pin g

- s ti ll

lacks-r obustness-and- re l i ab ility / (last visited Apr. 22, 2013). Acc ording to defe ndant, whether RFUs can be connec ted to the amount of DNA in a sample is an “issue appropr iately explored in a Frye hear ing.” But defe ndant cannot es t ablish ineffe ctive assistance of counsel–or overc ome the presumption that counsel’s actions wer e the product of trial strategy –by showing that a motion seeking a Frye hear ing could have been made to explore this issue. Weighing differ ing views among the scientific literature would cer t ainly fac tor into the assessment of whether to reque st a Frye hear ing; if the best that defe ndant can conclude from the scient i fi c literature is that “pea k heig hts are not nece ssarily reliable
assessment of the amount of DNA,” defe ndant surely cannot overc ome the presumption that

-32-counsel made a sound strateg i c d ec i s i o n that a Frye hear ing would have been unlikely to

succe ed. This is prec i s ely the ty pe of nuance d strateg ic decision that trial counsel must confr ont in case s of DNA and other scientific evidenc e. Wit h the rec ord befor e us, defe ndant has simply not overc ome the presumption that counsel’s decision to forg o a Frye hear ing was the produc t of sound trial strategy

. ¶ 117 We note that there is no rea son to believe that defe nse counsel was ill-equipped to assess the testimony of fore nsic scientists or the scientific literature

. T h e d ef ense team was comprised of a private attorney , three attorney s from the State Appel l at e De fende r Death Penalty Trial Assistance Unit, and a contra ct attorn ey , at least some of whom had considera ble experience in DNA evidenc e. The defe nse team relied upon a quality assura nce auditor of fore n s i c laboratories and three DNA experts who held advanc ed deg ree s in the scienc es. One of those experts, Dr. Reich, testified on behalf of the defe nse, challeng ing the reliability of a nine -loci sample a

nd highlig hting the possibility of contamination. ¶ 118 Even t h o u gh t h e d ef en s e t ea m had multipl e experts at their disposal and other wise
ag g ressively challeng ed the DNA (and fing erpr int) evidenc e, defen d an t now claims that counsel simply “missed” the issue completely

. To endo rs e that view, howeve r, we must conclude : (1) while defe nse counsel thoroug hly questioned Doyle about her methods at the quantitation sta g e and obtained he r admission that testing a quantity below standa

rd levels
may eff ect the profile obtained, the defe nse team simply failed to consider whether to further challeng e the acc urac y of the DNA results based on g oing forwa rd with testing what
appea red to be a s m al l s am ple; (2) while counsel subpoenae d and obtained the J oliet Instrument’s validation studies, which listed RFU peak height information, counsel did not revie w the data, failed to c onsider any relationship betwe en peak heig ht a nd the possibili ty of stochastic eff

ects, or otherwise did not know of a possible connec tion betwee n peak heig ht and stochastic eff

ects from their experts or from the literature ; (3) counsel failed to consult with their team of DNA experts to explore possible problems related to sample quantity and thus wer e not acting on expert advice in deciding ag ainst moving for a Frye hear ing; and (4)

even with all this information and expert advice at hand, counsel completely failed to consider a possible challeng e based on the quantitat i on results, never considere d whether RFU peak heig hts showed that the sample was outside the stochastic threshold, and thus did
not make a strateg ic call ag ainst reque sting a Frye hear ing. On this rec ord, we find that view of events wholly speculative, and we conclude that defe ndant has failed to show that his counsel was so defic ient that he was “not functioning as counsel” under the first prong of the Strickland

test. Richardson , 189 I ll. 2d at 411. ¶ 119 In light o f d ef en dant’s inability to meet Strickland ’s first prong , we need not further addre ss whether defe ndant could also show that a Frye h ea ri n g wo u ld have enjoy ed a

rea sonable chanc e of succe ss, nor is it nece ssary to consider whether defe ndant could show
t h at without the DNA evidenc e prese nted here
, the result of the trial would have b ee n differ ent. “B eca

use a defe ndant’s failure to satisfy either part of the Strickland test will defe at a claim of i neff

ective a ssistance, a

court is not require d to addre ss both components of the inquiry if t h e d ef

endant makes an insufficient showing on one. [C itation.] ” (Interna l quotation marks omitted.) People v. Edwards
, 1 9 5 I ll. 2d 142, 163 (2001). Her e, wher e defe ndant cannot show that his counsel’s perf ormanc e fell below profe ssional standards, his

-33-ineffe ctive assistanc e cla im fails.

¶ 120 I I I . Adoption of Daubert ¶ 121 Def

endant contends that we should aband o n the Frye test and ins tead adopt the “more stringe nt” standard for the admission of scientific evidenc e established in Daubert v. Merre ll Dow Pharmace uticals, Inc.
, 509 U.S. 579 (1993). That is not an argument for this court. Our
supreme court has repe ate d l y held that I llinois courts follow the Frye test rathe r than Daubert

. See McKown I

, 226 I ll. 2d at 248; Simons
, 213 I ll. 2d at 529; Donaldson
, 199 I ll. 2d at 76-77 (“I llinois law i s unequivoca l: the exclusive test for the admission of expert testimony is g overne d by the standard first expressed in Frye v. United States
, 293 F. 1013 (D.C. Cir. 1923).”), abrogated on other grounds by Simons , 213 I ll. 2d at 530; see also I ll. R. Evid. 702, cmt. (ef

f. J an. 1, 2011) (“[I llinois Rule of Evidence ] 702 confirms that I llinois is a Frye state.”)

. This court lacks the authority to overr ule these decisions, which are binding

on all lower courts. People v. Artis
, 232 I ll. 2d 156, 164 (2009). Unless and until our supreme court adopts a new test for the admission of scientific eviden ce , we must apply the Frye standard. People v. Safford
, 392 I ll. App. 3d 212, 230 (2009); Donnellan v. First Student, Inc. , 383 I ll. App. 3d 1040, 1057 (2008).

¶ 122 I V. Rebuttal Closing Arg ument ¶ 123 Def

endant next argues that the prosec utor made inflammatory
, improper rema rks during the State’s rebuttal closing argument and the cumulative eff ect of those rema

rks was to deny him a fair trial. Be fore turning to the comments at issue, we note that all but one of his claims of improper argument have been forf eited, as objections either wer e not made at trial or wer e not prese rved in a posttrial motion. Def endant seeks revie w of these rema rks under the plainer ro r doctrine, which require s defe ndant to show either: “ ‘(1) a clea r or obvio u s er ro r

occur red and the evidenc e is so closely balanc ed that the err or alone threatened to tip the scale s of justice ag ainst the defe ndant, reg ardle ss of the seriousness of the err or, or (2) a clea r

or obvio u s er ro r occur

red and that err or is so serious that it aff ecte d the fairne ss of the defe ndant’s trial and challeng ed the integ rity of the ju dicial proce ss, reg ardle ss of the cl o s eness of the evidenc e.’ ” People v. Thompson
, 238 I ll. 2d 598, 613 (2010) (quoti n g People v. Piatkowski
, 225 I ll. 2d 551, 565 (2007 ))

. As explained below, howeve r, we conclude that near ly all of these comments wer e within the bounds of permissible argument, and even if we assume that defe ndant had prese rved his objections to the few brief comments that wer e improper , these isolated r emar ks did not deny

defe ndant a f

air trial.

¶ 124 A. Whether the Rema rks Were Improper ¶ 125 Re gar d l es s o f wh et h er d ef en d ant has prese rved his objections to the prosec utor’s comments, our initial inquiry is to deter mine whether there was err or, i.e.
, whether any of the complained- o f re m ar k s wer e improper. Prosecutors are aff orded wide latitude in closing
argument. People v. Caffey
, 205 I ll. 2d 52, 131 (2001). Whil e a prosec utor may comment on the evidenc e and all infere nces rea sonably yielded by the evidenc e ( People v. Pasch
, 152 I ll. 2d 133, 184 (1992))
, a prosec uto r m ay not use closing argument simply to “ ‘inflame the

-34-passions or develop the prejudice s of the jury without throwing any light upon the issues.’ ”

People v. W

heele r , 226 I ll. 2d 92, 128-29 (2007) (quoting People v. Halteman
, 10 I ll. 2d 74, 84 (1956))

. Although “[i] t is not clea r whether the appropr iate standard of revie w for this issue is de novo or abuse of discretion,” we need not resolve the issue, beca use our holding in this case would be the same under either standard. People v. Land
, 2011 I L App (1st) 101048, ¶¶ 148-151 (noting conflict betwee n People v. W heele r , 226 I ll. 2d 92, 121 (2007), and People v . Blue , 189 I ll. 2d 99, 128 (2000)). ¶ 126 Def

endant first argues that the prosec utor implied that there was other evidenc e, hidden from the jury
, t h at co n fi rmed defe ndant’s guilt. At the start of his rebuttal argument, the
prosec utor thanked the jurors for their ser vice a nd then continued:
“I ’d like to say that what I say is not important. I ’m only g oing to spe ak for an hour and that’s en o u gh
, y o u ’ve hear d enough from the lawyers. I ’m sorry you cannot ask questions, I rea lly am. I ’d like to answe r the questions you have. But our sy stem doesn’t allow that. It would be g ood to know what’s on your minds, but Ican’ t.” By these comments, we understand that the prosec utor attempted to explain to the jurors that he could not take what he viewed as the more eff icient course –to answe r thei r direc t questions about the case

– and would instead have to guess at what the jurors consider signific ant about defe ndant’s closing argument as he spoke to t h em for the next hour. In defe ndant’s view, the prosec utor “implied that there was evidenc e not reve aled to the jury ,” but he could not “g ive t he jurors the ‘i nside scoop’ on the evidence” beca use he could not

answe r the jurors’ direc t questions. But the prosec utor made no ref ere nce to evidenc e outside the rec ord or the fac t that such evidenc e exis ted, as in the case s cited by defe ndant. See People v. Ray
, 126 I ll. App. 3d 656, 661 (1984) (re manding for new trial wher e prosec utor told the jury he wished he could g ive the jurors his file and then ref err ed to information not in evidenc e); People v. Barnes
, 107 I ll. App. 3 d 2 6 2
, 2 6 8 (1982) (remanding for new t rial wher e prosec utor comment ed on lack of phy sical evidenc e, claimed that “ ‘[defense ] [c] ounsel knows all the evidenc e in the apar tment,’ ” and then stated that “ ‘[w] e would wish

we could show it to y ou’ ”). Although defe ndant argues that the ref ere nce to outside evidenc e here is “more subtle” than in Ray or Barn es , we d o n o t find a “more subtle” ref ere nce to outside evidenc e. We find no such ref ere nce whatsoeve r. To acc ept def endant’ s argument,

we would have to credit speculation about hidden meaning s and ignor e the prosec utor’s straig htforwa

rd explanation that our sy stem does not permit a question-and- answe r proce ss. The prose cutor’s c omments were not improper. ¶ 127 Def

endant nex t ch all eng es the prosec utor’s rema rk about the testimony of the State’s fing erpr int ex pert, John Onstwedder:
“He made pe rfe ct sense. He’ s a g reat e x pert. They talked about–I guess to impeach him t h ey talked about that there ’s been two or three misidentifications throug hout the world. And then I guess from there y ou’re supposed to conclude
, oh, t his is a misidentification. He had it ver ified by someone e lse.
But they want you to look at him, a lay person , an d h e told y ou that that require s expert testimony
, y ear s and y ear s of experience

. I respe ctfully submit, ladies and
g entlemen, we need expert testimony
, expert testimony
, and he’s the best, he’s very , very

-35-g ood at it, and it was unre butted. No other e x pert– [DEFENSE COUNSEL ]: Objection to shifting the burden. [AS SI STANT STATE’S ATTORNEY ]: I ’m not–excuse me.
THE COURT: L adies and g entlemen, I ’m g oing to overr ule the objection. But here ’s the thing is that the burden of proof alway s is with the State as we discussed in voir dire examination, as I told y ou i n t h e b eginning with my opening rema rks. The burden of proof is alway s with the State and the defe ndant is presumed to be innocent and he does not have to prove his innocence

. Go ahe ad ***. [AS SI STANT STATE’S ATTRONEY]: We welcome the burden of proof. They are rig ht. For a minute don’t stop say ing that to yourself. Fr om the time you’re back there the State’s burde n of proof

we we lcome it.” ¶ 128 Def

endant raises two conce rns about these rema rks. First, defe ndant claims that stating th at On s t wedder was “a g reat expert” and was “the best” was an improper attempt by the
prosec utor to g ive his persona l opinion of the witness and v o u ch for his cre dibilit y , thus placing the i nteg rity of t he S tate’s Attorney beh i n d t he witness. See People v. Valdery
, 65 I ll. App. 3d 375
, 3 7 8 (1 978) (conc luding that prosec utor’s rema rks–including a statement that “ ‘I have never had contac t with people who have come forth and testified as witnesses who have had the level of integ rity and char acte r of those people and I ’m par t i cularly impressed’ ”–we re “hig hly prejudicia l beca use they place the inte gri t y o f the office of the State’s Attorney behind the cre dibilit y of the witnesses”)

. As the State points out, howeve r, “[t] he cre dibilit y of a witness is a proper subject for closing argument if it i s based on the evidenc e or infere nces drawn from it.” (Interna l quotation marks omitted.) People v. Hicke y , 178 I ll. 2d 256, 291 (1997). And the rema rks here–wh en v i ew ed in the context of the
prosec utor’s attempt to defe nd Onstwedde r from impeachme nt, emphasize his ex perie nce, and point out that his identification was verifie d– are based on Onstwedde r’s testimony and infere nces dr awn f

rom it. ¶ 129 De fenda

nt also argues that the prosec utor soug ht to shift the burden of proof when he descr ibed Onstwedde r’s testimony as “unrebutted.” Whi le a prosec utor must not state that
t h e defe ndant has an obligation to come forwa rd with evidenc e that would cre ate a

rea sonable doubt as to his guilt, a prosec utor m ay co m ment on the “def endant’ s failure to submit any evidenc e that would tend to ref ute the case ag ainst him.” People v. Albanese
, 104 I ll. 2d 504, 521-2 2 (1984); People v. Kliner
, 185 I ll. 2d 81, 153-55 (1998) (holding that
prosec utor did not sh i ft t h e burden to the defe ndant when he argued in rebuttal that the defe nse could have called various witnesses). Thus, our supreme court has hel d t h at a prosec utor may comment that the testimony o f t he State’s expert witness was not contra dicted at trial. People v. Peter
, 55 I ll. 2d 443, 460-61 (1973) (finding comments “conc erning the lack of evidenc e contra dicting the evi d en ce t he State had offe red on the subject of f

inge rprints” did not shift the burden of proof to the de fenda

nt). ¶ 130 We acknow ledg e that thi s court has dr awn a fine line be tween c omments that properly emphasize that the State’s “evide nce is unco ntradicte d” and comments that “improper ly
sug g est[ ] to the jury that defe ndant had a burden to introduce evidenc e.” People v.

-36-Giangrande
, 101 I ll. App. 3d 397, 402 (1981); see People v. Gorosteata
, 374 I ll. App. 3d

203, 218 (2007) (collec ting case s). Def endant argues that the rema rks here fall into the latter
cate g ory beca

use a comment on the “unre butted” testimony of a witness, without further elabor ation, implies that the defe ndant h ad a burden to rebut that testimony

. In this case , h o weve r, the prosec utor’s comment does not stand alone: the trial court imm ed i at el y instructed the jury

that “[t] he burde n of proof is a lway s with the State and the de fenda nt is presumed to be innocent and he does not have to prove his innocenc e,” a nd the prosec utor then acknow ledg ed and “w el come[d]” the State’s burden of proof. These clar ifying
comments dispelled any risk that the jury would interpre t the word “unre butted” as a g ener al
pronounce ment that defe ndant must come forwa rd with ev i d en ce to prove his innocenc e. Viewing the rema

rks in context, we perc eive the prosec utor’s comment as an arg ument that Onstwedde r’s cre dibili t y was not meaning fully challeng ed, despite the defe nse counsel’s eff ort to impeach his cr edibility

. ¶ 131 Def

endant next points to the State’s rebuttal argument conce rni n g d ef en d ant’s DNA expert, Dr. Ka

rl Reich:
“D id [defense counsel] even talk about Wright [ sic ], their expert Wright [ sic ]? I wouldn’t either, w ould y ou? No. How much m oney do you make a y ear ? He tells y ou, first I ’m on salary

. Then we said, come on, Doctor, tell me a l i ttle bit more about
y ourself. Well, I ’m vice- president of the company . Come on, Doctor, y ou owe it to the ladies and g entlemen of the J ury , don’t y ou, beca use y ou have to weig h his bias, interest, motive, rig ht? Then he finally say s, well, I have a one-third interest. W hy do y ou have
to pull it out of this doctor. You know, profe ssionals, they come in here
, they ’re qualified

as experts. They lie like ever y body else. How much do y ou make? $100,000. $100,000. They guy comes in here
, $1 0 0
, 000. He’ s motivated by money

. Can y ou imag ine if he
persua ded y ou 12 that the DNA don’t match, he would be hounded by defe nse attorney s throug hout the country

. J ust beca use they wea

r suits, they ’re doctors and they ’re experts doesn’t mean any thing. You judge their cre dibilit y like y o u j u d g e the cre dibilit y of ever y body else. That’s the law. You’re g oing to g et an instruction on that. The law say s y ou have to look at people’ s bias, motive, and intere st clear acr oss the board.”
Def endant argues t hat s uch comments, specific ally that Reich was “motivated by money ,”

wer e an imprope r attac k on Reich’s c hara cter and integ rity

. ¶ 132 The cre dibilit y of an expert witness is a proper subject for closing argument if it is based

on the evidenc e or infere nces drawn from it. People v. Hicke y , 178 I ll. 2d 256, 290 (1997). In People v. Hicke

y , for example, the prosec utor stated in closing argument that the defe nse expert was “ ‘an assistant profe ssor making 35 g rand who jumpe d t o $ 1 2 0,000 a y ear to testify for criminal defe ndants’ ” and argued that beca use of his financ ial interest, the expert could never be expected to comment favor ably on the state laboratory ’s work. Id. The court concl u ded that the prosec utor’s statements “we re acc eptable comments on [t he expert’s] possible bias,” drawn from evidenc e that he testified primarily for defe ndants and that his income had inc rea sed consider ably when he beg an testifying a s an expert. Id. at 291. ¶ 133 We acknow ledg e that the State sug g ested t h at b ecause Dr. Reich’s company rec eived

-37-over $100,000 for its work, the jury had a rea son to doubt the tru t h fu l n es s o f Dr. Reich’s

testimony

. This was part of a larg er argument that Dr. Reich and those witnesses “qualifie d

as experts” should be judge d by the same standards o f bias, motive, and interest as other witnesses when the jury considere d his testimony

. As in Hicke y , we find no err or in the
prosec utor’s attempt to establish the expert’s possible bias. ¶ 134 We do find err or in two comments by the prosec utor that wer e not dra wn fr o m t h e evidenc e, but wer e needle ssly disparaging to Dr. Reich and defe nse counsel. First, while discussing Dr. Reich’s tes ti mo ny , th e p r o s e c utor stated: “Dr

. Wright [ sic ], whateve r y ou want to call y ourself ***.” We see no purpose for this flee ting comment other than to demea n the expert’s status as a doctor of molecular biology
, without appar ent basis in the evidenc e. The State on appea l offe rs no explanation for this rema rk, and we conclude that it was improper. Def endant a lso points t o comments by the State direc ted at def

ense strateg y : “I commend Mr. Bur ch for his passion. His passion at the beg inning was quite extraordinary when he talked about the blood, if y ou rec all that. Remember he said, it’s in the blood, it’s in the blood. And he said, all these other issues, and he showed a lot of passion. Ig ive Mr. B urch c redit I guess bec ause e ven though his theory

– [DEFENSE COUNSEL ]: I object at this time.
THE COURT: Move on ***. [AS SI STANT STATE’S ATTORNEY ]: Sure.
Ihave a hard time g etting pa ssionate about somethingthat Idon’t believe in where Ihave to c hang e cour se, but– [DEFENSE COUNSEL ]: Your Honor

– THE COURT: He’ s talking a bout his personal experienc e. Ove rruled.” ¶ 135 The State may challeng e a defe ndant’s cre di b i l i t y an d the cre dibilit y of his theory of defe nse in closingargument when there is evidenc e to support such a challeng e. People v. Hu dson
, 157 I ll. 2d 401 (1993). In this case , then, it would have been proper for t h e prosec utor to point out that defe nse counsel argued during opening statements tha t a footprint

was left in blood by the k i l l er , but did not ag ain press that point during closing argument, afte r the prosec utor argued at closing that the evidenc e showe d the footprint was the result of proce ssing the bl o o d y cr i me scene

. But here
, the prosec utor took that permissible
argument a step further by focusing his re m arks on defe nse counsel’s style of advoca cy , sug g esting that counsel prese nted feigned enthusiasm for a defe nse he knew was false. Such

co mments “improper ly shift the focus of attention from the evidenc e in the case t o t h e objectives of trial counsel.” P eo p l e v. Emerson , 97 I ll. 2d 487, 498 (1983); cf. People v. Monroe , 66 I ll. 2d 317 (1977) (finding prosec utor’s comment that defe nse counsel did not believe in the theory of defe nse was improper) ; see also People v. Kirchner
, 194 I ll. 2d 502, 549 (2000) (distinguishing betwee n comments on the cr ed ibilit y of the defe ndant and his theory of defe nse, which are proper , and impermissible attack on defe nse counsel). The same

can be said for the prosec utor’s later rema rk that he “told his partne rs don’t object during their closing beca

use th ey h av e a larg e responsibility here
, as do we.” That comment fo llowed two of defe nse counsel’s objections, and it needle ssly focuse d the jury on the motives and tactics of defe nse counsel rathe r than the arguments and evidenc e prese nted at

-38-trial.

¶ 136 Additio n al l y , we fi n d err or in one other comment by the prosec utor–that the ver dict “tra nscends the courtroom walls” and “g oes out to the community .” After the comment was made, the tr ial judge immediately interjec ted, telling the prosec utor to stop and instructing the jurors to disreg ard these comments: “[Y]ou’re only supposed to conce rn y ourselves with the fac ts and the law as it applies to Mr. Luna. You’re not sending mess age t o t h e wo rld. That’s not your job.” The prosec utor later c ontinued on the same the me: “Your verdic t will also talk to the Anni e L o ck et t s of this world, will it not? And there ’s others out there like Annie L ockett, a lot of Annie L ocketts out in this world who know something, who k n o w s o m et h ing and yet say to themselves, do I have the inner streng th, the moral fiber

to come to cour

t. [DEFENSE COUNSEL ]: Objection.
THE C OU R T : I ’m sorry , [Assi stant State’s Att orney], y ou’re not here to reinfor ce any self-doubt that Anne L ockett has either. For g et about the other Anne L ocketts in the world and stay

awa y from that.
L adies a nd g entlemen, ag ain, y ou’re supposed to conce rn yourselves w ith the fac ts in this case an d the l aw as I g ive i t to y ou, and that way rea ch a verdic t. Not about any
messag es and not a

bout reinfor cingany

individuals.”
On appea l, the State conce des that the prosec utor’s comments wer e improper. See, e.g. , People v . Johnson , 208 I ll. 2d 53, 79 (2003).

¶ 137 B. Whether the Improper Re marks Require a Ne w Trial ¶ 138 Of the sever al comments defe ndant has claimed wer e err or, we have found three isolated
statements wer e improper. Whil e defe ndant’s claims of improper argument have been forf eited as to two of these comments, defe ndant did prese rve his claim of err or (by objecting
at trial and rene wing his objection in a posttrial motion) as to the prosec u t o r’s comments about the verdic t sending a messag e to the community

. Where an objection to a prosec utor’s
comments has been prese rved, we must deter mine wheth er any improper rema rks, when viewed in the context of the entire argument, “constituted a materia l fac tor in a defe ndant’s conviction.” W

heele r , 226 I ll. 2d at 123. A new tr ial should be g rante d “[i] f t he jury could have rea ched a contra

ry verdic t ha d the improper r emar ks not been made
, or the revie wing
court cannot say that the prosec utor’s improper rema rks did not contribute to the defe ndant’s conviction.” Id. ¶ 139 As to the prosec utor’s im p r o p e r r e ma

r k that the verdic t “tra

nscends the courtroom wa lls,” the par ties ag ree that “[t] he trial c ourt’s act of promptly sustaining a defe nse objection to a closing argument comment is g ener ally sufficie n t t o cure any err or which may have

occur red.” People v. Hope
, 168 I ll. 2d 1, 26 (1995). In this case , the t ri al co u rt not only instructed the jury

that it was to consider only the facts of t he case before it, the court also emphasized that it was not the State’s role “to reinfor ce any self-doubt that Anne L ockett has” and it was not the jury ’s role to send “any messag es” to the community with the verdic t. We conclude that the trial court’s direc t and forc eful instructions to the jury wer e sufficie nt

-39-to cure any prejudicia l impact of the prosec utor’s improper comment. See People v. Harris
,

225 I ll. 2d 1, 33 (2007) (consider ing the possibili ty of prejudice and noti n g t hat “def ense counsel’s objection to the comments was sustained and the jury was proper ly instructed that the arguments of counsel wer e not evidenc e that it could consider” ); People v. Chavez
, 327 I ll. App. 3d 18, 28-29 (2001) (finding that potential prejudicia l eff ect of prosec utor’s
comments about “socia l evil of the drug trade in Chicag o” was vitiated by t wo o b j ections from defe nse counsel and court instructions to only consider the evidenc e prese nted at trial); People v . Sutton , 353 I ll. App. 3d 487, 501 (2004). ¶ 140 As to the comments about Dr. Reich or defe nse counsel’s tactics, even if we assume that defe ndant had not forf

eited his objection to these comments, we conclude that they “did not eng ender substantial prejudice ag ainst defe ndan t s u ff icient to war

rant reve rsal of his convictions.” Hicke

y , 178 I ll. 2d at 289-90. These comments wer e so brief, and of such small import in the State’s leng thy closing arg ument, that they did not amount to reve rsible err or. See People v. Runge
, 234 I ll. 2d 68, 142-43 (2009) (“A ll of the comments wer e brief and i s o l ated in the contex t of l eng thy closing arguments, a factor we have found si g nifica n t i n assessing the i mpact of such remarks on a jury verdic t.”); see also People v. McCann
, 348 I ll. App. 3d 328, 338-39 (2004) (holding that a prosec utor’s ref ere nce to defe nse counsel as “an octopus rele asing inky fluid” and as “throwing dust on the road to justice” did not deny the defendant a fair trial wher e the “comments, when viewed in the contex t and tot ality of the closi ng arguments, wer e brief”)

. Moreove r, the prose cutor’s isolated statements, at t he end of a month-long trial, cannot be said to be the cause of the convictions in this case

. The State prese nted defe ndant’s videotaped statement and his statements to Anne L ockett and Eileen Ba

kalla ad m i t t ing to the murders. Def endant’ s statements wer e corr oborate d by phy sical evidenc e, DNA found on the partially eate n chicke n bones and a partial palm print

on a napkin, that show defe ndant was at the Br own’s Chicken restaur ant on J anuar y 8, 1993. After hear ing that evidenc e over sever al wee ks of trial, and afte r hear ing the State’s leng thy closing argum en t focusing on the evidenc e prese nted, we cannot say that the few brief
comments we have found improper constituted a materia l fac tor in defe ndant’s conviction. The improper rema

rks “did not so prejudice the jury as to deny defe ndant a fair trial or have a dis proportionate impact on the jury ’s findingof guilt.” People v . Easley , 148 I ll. 2d 281, 332-33 (1992)

. ¶ 141 Def

endant also argues that he was denied the eff ective assistance of counsel based on his counsel’s failure to object to the rema rks challeng ed on appea l. Be cause we have conclude d that any improper rema

rks did not impact the jury ’s finding of guilt or deprive defe ndant of

a fair trial, defe ndant cannot demonstrate that counsel’s failure to object prejudice d the
outcome of h i s trial. See, e.g. , People v. Glasper
, 234 I ll. 2d 173, 215-16 (2009). We there fore reje ct his ineffe ctive assistanc e cla im.

¶ 142 V. Statements of Todd Wakef ield and Casey

Sander ¶ 143 Def

endant finally claims that the trial court err ed when it denied his motion in limine to admit out-of-c ourt statements from Todd W ak efie ld and Casey Sander. Whil e the court admit ted a statement from J ohn Simonek–that he committed the murder with Todd

-40-Wakefield–a s a “stateme nt ag ainst penal interest” under Chambers v. Mississippi
, 410 U.S.

284 (1973), the court ruled that neithe r Sa n d e r ’ s n o r Wa

k e f ield’s statements wer e admissible. A ruling on the admission of evidenc e is within the sound discretion of the trial court and will only be reve rsed if the trial court abused its discretion. People v. Caffey
, 205 I ll. 2d 52, 89 (2001); People v. Bowel
, 111 I ll. 2d 58, 68 (1986) (citing People v. W ard
, 101 I ll. 2d 443, 455-56 (1984))

. The trial court abuses its discretion only wher e its ruling is arbitra ry , fanc iful, or wher e no rea sonable person wo u l d t ak e t h e view adopted by the trial court. Caffey , 205 I ll. 2d at 89. ¶ 144 Gene rally
, decla rations ag ainst interest are admissible as an exception to the hear say rule, based on the assumption that a person is unlikely to fabr icate a statement ag ainst his or her

own interest. People v. Tenney
, 205 I ll. 2d 411, 433 (2002). Whil e courts g ener ally will not admit an unsworn, out-of-c ourt decla ration that the decla

rant (rather the defe ndant on trial) committed the crime, even though the decla ration is ag ainst the decla rant’s penal interest, such a statement may be admitted under the statement-a g ainst-pena l-interest exception to the hear say rule “whe re justice require s.” Id. at 433. “[W ]here the hear say statement bear s persua sive assura

nces of tru s tw orthiness and is critica l to the acc used’s defe nse, its exclusion deprive s the defe ndant of a fair trial in acc ord with due proce ss.” Id. at 434 (citing Chambers
, 410 U.S. at 302). To help assess the reliability of such a statem ent, we look to the four fac tors identified in Chambers : (1) the statement was spontaneously made to a close
acqua intance shortly afte r the cri m e occur red; (2) the statement is corr oborate d by other evidenc e; (3) the statement is self-inc riminating and ag ainst the decla rant’s interests; and (4) there was adequate opportunity for cross-e x amination of the decla rant. Chambers
, 410 U.S.
at 300-01. These fac tors are mere ly guidelines, not require ments, for a dmissibi lity

. People

v. Keene
, 169 I ll. 2d 1, 29 (1995); People v. Pec o r a r o , 1 7 5 I ll. 2d 294, 307 (1997). Ultimately
, we must deter mine whether the s t at em ent at issue “wa s made under circ umstances which provide ‘consider able assura nce’ of its reliability by objective indicia of trustworthiness. [Cit ation.]” People v . Thomas , 171 I ll. 2d 207, 216 (1996). ¶ 145 Assessing the reliability of the statements in this case starts and ends with the Chambers fac tor that is at the hear

t of the inquiry : whether Wakefield’s and Sander’ s statements wer e self-inc riminating a

nd ag ainst their pena l interest. Our supreme court has direc ted that “ ‘a statement of such a nature is the bedroc k for the exception, that fac tor, obviously
, must be present .’ ” (Emphasis adde d.) Tenney
, 205 I ll. 2d at 436 (quoting Keene
, 169 I ll. 2d at 29). A decla ration ag ainst penal interest “nee d not be a confe ssion, but must involve exposure to criminal liability .” Id. (citing 2 J ohn W. Strong, McCormick on Evidence § 319(b), at 323-24 (5th ed. 1999)). The trial court found that unlike Simonek’s statement, neither the statement from Wakef

ield nor the stateme nt from Sander met this requireme nt. ¶ 146 Todd Wakefield, a friend of J ohn Simonek and Casey Sander, ga ve several statements
to the pol ice. On J une 18, 1998, Todd W akef ield told police that he ate a meal at Brown’s Chicken around 9 p.m. on J anua ry 8
, 1 993. When asked, “So chanc es are y ou’re the last
person that ate there ,” Wakefield said “I would definitely ag ree on that.” On September 15, 1999, Wakefield told police that he order ed food fr o m M i chael Castro on the night of the murders. He said “the only rea son he went to Br owns [ sic ] Chicken was to g et something to eat, that he never

shot or killed anyone.”

-41-¶ 147 Casey Sander, a fo rm er Br own’s Chicken employ ee and Wakefield’s g irlfriend, w as

interviewe d by police s ever al times in the months following the shootings. Unlike ear lier interviews where Sander c l ai m ed that her acc ounts wer e si mply drea ms or ni g htmares, on April 28, 1999–at her tenth interview–Sande r claimed that what she told pol ice was based

on her actua l observa

tions. Sander said that on J anu ary 8, 1993, her boy friend, Todd Wakefield, picked her up at her home at 6:30 p.m. in his brown station wag on, and they went to Br own’s Chicken sometime afte r 9 p.m., beca use Sander wanted to talk to Ly nn Ehlenfe ldt about her work schedule

. When Sander went into the restaur ant, Wakefield insisted on following her. Sander then stated that Wakefield went to talk to Rico Solis and Mike Castro, beca me enra g ed, and y elled “Eve ry body g et in the back or I ’ll kill y ou,” while waving a g un. Sander told the police that she saw Wakefield shoot people in the r estaura nt and there was smoke and haze in the room. Sander ran back to her house afte rwa rd. Sander did not mention Simonek in her statement, but during her interview, she stated “I walked in the back door and they came in behind me.” When asked who “they” wer e, Sander claimed to have said “Todd,” but of

fice rs and an assistant State’s Attorney prese nt confirm that she said “they .” When told that there was a bloody footprint left at the scene , Sander stated that “it was probably a size 8 Reebok a

nd it was probably

mine.” Af

ter Sande r wa s g iven her Miranda

war nings, she said that “she was tired and wanted to g o home” and “she made all this up just so she could g o home.” Sande r wa s allowed to leave the police station. ¶ 148 Whil e defe ndant agree s that neither Wakefield nor Sander acknow ledg ed any role in the murders, he never

theless claims that “an admission to being prese nt at [a] crime scene , while denying participation, is ag ainst one’s penal interest.” We cannot ag ree with such a swee ping view of the “ag ainst penal interest” require ment. There is simply no crime in be ing prese nt at the sce ne of a

crime or witnessing a

crime, w ithout more. ¶ 149 Def

endant’ s single piece of authority for this broad principle i s People v. Murray , 254 I ll. App. 3d 538 (1993), wher e the question was whether s t at em en ts to police wer e sufficie ntly reliable to e stablish probable cause to a rre st in connec tion with the shooting of
two men. Murray
, 254 I ll. App. 3d at 549. The police spoke with a man named Washington, who was subject t o a “stop order ” is sued for a doub l e m u rder

. Id. at 541. When the pol ice
eventua lly spoke to the d efe ndant (who was found based on information Washington
p rovided), defe ndant told them he was at a dope house when a man named Washingto n

arr ived with two machine guns an d cl ai m ed h e had “done a ‘mission.’ ” Id. at 542. The police ag ain confr onted Washington, who said that the defe ndant was the g etawa y driver for the shootings desig nated by the leade r of a street g ang ; Washington “also implicated himself and said he had witnessed the shooting.” Id. Specifica lly
, Washi n gton said “ ‘he was a witness to the shooting, and t h at h i s i n v olvement was limit ed as far as shooting at the

v i ct ims.’ ” Id. at 549. On appea l, defe ndant argued that Washington’s statement wa s unreliable beca

use he was “under suspicion for the murders and was denying culpability .” Id. at 550. Noting that “[a] co-of fende r’s statements to the police constitute probable cause wher e the statements are ag ainst t h e i n fo rmant’s penal interest,” the court conclude d that while Washington, a codef en d an t who later pled guilty
, “did deny shooting the victims as [t he] defe ndant claim[ed], his admission that he was at the scene of the crime and witnessed its occur renc e could cer

tainly be considere d as a statement ag ainst penal interest.” Id. at 550.

-42-¶ 150 Wit h the fac ts of the case in view, it is clea r t h at Murr ay does not stand for the broa d proposition that defe ndant assig ns it. In Murray
, afte r police confr onted the witness, he made

a statement admitting involvement with the shooting that, while “limited,” exposed him to criminal liability

. The exposure was rea l: Washington was char g ed along with the defe ndant, and he pled guilty

. We disagree that admission to being prese nt and wi t n essing a crime, without all the attendant fac ts in Murray
, satisfies the ag ainst-pena l-interest exception. This court ha s specific ally

held (in a pr obable c ause case like Murray ) that admitting to be ing a witness to a crime does not qualify as a statement ag ainst penal interest, without admission of involvement in the crime. See People v. Lindner
, 24 I ll. App. 3d 995, 998 (1975) (“[T]he informant’s statements o f his prese nce during the [drug] transac tion wer e not of such char acte r as to be statements ag ainst penal interest. Although the aff idavit did rec ite that the informant was prese nt, it did not sufficie ntly demonstrate the informant’s complicity in the criminal activities.”); see also 2 Way ne R. L aF ave, Searc h and Seizure § 3.3(c)
, at 178 (5th ed. 2012) (noting
, in the fourth amendment context, that “ac knowledg m en t s that mere ly

cre ate a suspicion of the informant’s involvement in the criminal activity
, such as that he was prese nt at the time of a transac tion involving narc otics or stolen proper ty , will not suffice [as
a stateme nt ag ainst penal intere st] ”). ¶ 151 Her e, Wakefield did not state that he was involved with the shooting in any way

. He did
not even admit that he had witnessed the crime. We there fore conclude that Wakefield’s
statement was not the “ty

pe of confe ssion [which] was in a very rea l sense self-inc riminatory and unquestionably

ag ainst interest.” See Chambers , 410 U.S. at 301. ¶ 152 Sander’ s statement suffe rs from the same defe ct. L ike Wakefield, Sander did not admit involvement in the shooting. She claimed that she saw Wakefield shoot se vera l pe ople and she then ran from the scene

. Whil e defe ndant argues that her statement sug g ests a g reater deg ree of involvement than that of a me re by stander, Sande r’s stateme nt sugg ests no more involvement than being at the restaur ant and then flee ing the scene afte r the shooting beg an. Moreove r, our supreme court has cautioned that “[w]hether a st atement is actua lly ag ainst the decla rant’s interest must be deter mined from the circ umstances of eac h case .” People v. Caffey
, 205 I ll. 2d 52, 99 (2001). As an example, the court explained that even “a statement admitting guilt and implicating another person, made while in cu s t o d y , may well be motivated by

a desire to curry

favor with the authorities and, acc ording ly
, fail to qualify as ag ainst interest.” Id. (citing W illiamson v. United States , 512 U.S. 594, 601-02 (1994)). I n other words, the court has rec og nized that in some circ umstances the rationale underly ing the
ag ainst-pena l-interest exception (that a person only would say something so damning if it is true) does not hold beca

use the decla

rant may be motivated to make such a statement, even if untrue. Whil e here it does not appea r that Sander wa s t ry i n g to “cur ry favor with the authorities,” th e re cord does show that she had a motivation to say what she said. As she explained when she rec anted her statement almost immediately afte r it was m ad e, Sander simply hoped to end the interrog ation (appa rently her tenth interview) “just so she could g o home.” Sander said the minimal amount she thought was nece ssary to end the questioning,
y et she did not eve n implicate her self or e x pose her self to cr iminal liabili ty

. ¶ 153 Def

endant now proposes an alternate theory fo r t re at i n g S an d er ’s s tatement as a statement ag ainst penal interest: that her disclosu re t h at she witnessed the murders could

-43-have subjected her to pr osecution for obstruction of justice beca use Sander previously told police that she did not know any thing about the crime. This argument fails. We first note that this obstruction of justice theory was never raised t o t h e trial court and could not have formed the basis of the court’s ruling on the motion in limine

. In fac t , af t er the trial court asked how Sander’ s statements could possibly be ag ainst her interest, defe ndant stated in a supplemental brief that “Sander ’s statements need not be ag ainst her penal interest in order to be admissible,” so longas other Chambers fac tors wer e satisfied. ¶ 154 I n any event, we ag ree with the State that nothing in the rec ord sug g ests that S an d er knowing ly furnished false information with an “i n tent to preve nt the appre hension or obstruct the prose cution or defe nse of any person,” as re quired unde r I llinois ’s obstruction of justice statute. 720 I L CS 5/31-4 (West 2010). C ontrary to defe ndant’s cla im, the rec ord does not sug g est that Sander’ s ear lier statements denying knowledg e ( i. e

. , th e s ta te me nts that, under defe ndant’s theory
, are false) wer e made t o p ro t ect Wakefield or anyone else. Moreove r, in light of Sander’ s immediate rec antation, def endant’s theory that Sander’ s

s t atement could be used as part of an obstruction of justice prosec ution i s wh o l l y implausible. As with W akef ield’s statement, we conclude that beca use Sander ’s statement

was neither self-inc riminatory nor ag ainst penal interest, it did n ot bear “per suasive

assura nces of trustworthiness.” Tenney
, 205 I ll. 2d at 434. The trial court did not abuse its discretion in excluding Sande r’s a nd Wakefield’s state ments.

¶ 155 CONCLUSI ON ¶ 156 In ac co rd an ce with the fore g oing, we aff irm defe ndant’s conviction for first degree murder.

¶ 157 Affir

med.

-44-