People v. Fountain

62 N.E.3d 1107

407 Ill.Dec. 185

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Timothy FOUNTAIN, Defendant–Appellant.

No. 1–13–1474.

Appellate Court of Illinois, First District, Second Division.

Aug. 23, 2016.

Rehearing Denied Sept. 14, 2016.

Michael J. Pelletier, Alan D. Goldberg, and S. Amanda Ingram, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, and John E. Nowak, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice SIMON delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Timothy Fountain was found guilty of two counts of murder and one count of armed robbery. The trial court sentenced defendant to a mandatory term of natural life in prison for the two counts for murder concurrent with a 30–year sentence for armed robbery. On appeal, defendant claims that (1) the trial court committed reversible error in refusing to grant defendant a meaningful continuance following the State's disclosure of a new DNA report days before the trial, (2) he received ineffective assistance of counsel, (3) the trial court erred in failing to conduct a Frye hearing on the admissibility of historical cell site analysis, (4) he was denied his right to a fair trial when a State witness made improper and prejudicial comments, and (5) the State made improper comments during rebuttal. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 Defendant was charged with multiple counts of murder, armed robbery, and burglary following the shooting deaths of Graciela Rodriguez and Nicholas Guerrero, and armed robbery of Maggy's Food Store on August 4, 2005, in Chicago. Before defendant's trial, the State moved to present evidence that a cell phone subscribed to by defendant was in the area of the store around the time of the crimes. The State enlisted FBI Agent Joseph Raschke to testify about historical cell site analysis. Defendant argued that the State failed to establish a proper foundation for this evidence where Raschke could not demonstrate the methodologies he used in concluding that defendant's phone was in the area of the store. Defendant also asked for a Frye hearing arguing that historical site analysis was new and novel and that it was not generally accepted within the scientific community. The trial court denied defendant's motions.

¶ 4 At trial, Brandon Grzesiak testified that on August 5, 2005, he and his friend nicknamed “Millhouse,” went to Maggy's Food Store around noon. They knew the woman who worked behind the counter and called her “Maggy.” As they walked to Maggy's, Grzesiak saw a person standing at the bus stop outside the store. The bus stop was just four to five feet away from the front door at Maggy's. Grzesiak testified that the man at the bus stop was wearing a dark green shirt, blue jean shorts, and a black White Sox hat. Grzesiak did not know the man and only took a “quick glimpse” of the man on his way into Maggy's. He testified that he and his friend proceeded inside the store and bought two Swisher Sweets to empty out and fill with marijuana so that they could get high that afternoon. Upon leaving the store, Grzesiak again looked at the man at the bus stop. Grzesiak and that man made eye contact for a few seconds before the man looked away. Grzesiak identified defendant in court as the man he saw at the bus stop in front of Maggy's Food Store.

¶ 5 Luis Campagna, a Frito–Lay delivery man, testified that on August 4, 2005, he walked into Maggy's Food Store to the last of three aisles and saw a man lying on the floor in a pool of blood. He went back outside the store and called the police. He did not see anyone coming out of the store while he was loading his hand cart and did not notice any cars driving away. Police officers arrived within minutes and cleared and secured the area.

¶ 6 Chicago police officer Christopher Chausse responded to a call on August 4, 2005, of a person being shot at Maggy's Food Store at 4458 South California Avenue in Chicago. When Chausse arrived there at 12:21 p.m., he encountered Louis Campagna. Officer Chausse saw victim Guerrero lying face down in a puddle of blood, and in the back room he saw the victim Rodriguez, lying face down.

¶ 7 Detective Velma Guerrero and her partner Detective William Gehrke arrived at Maggy's after the victims were transported to Mt. Sinai Hospital and before the forensic investigator arrived. Police investigator Raymond Jaster and his partner arrived at Maggy's on August 4, 2005, at about 1:40 p.m. Detective Guerrero directed Jaster to the back room of the store. In the back room, where one of the victims was found, Jaster found blood on the floor, a video recorder on a chair, and an expanded 0.5 caliber cartridge on the floor underneath a chair. The VCR recording system used at the store recorded the video from several cameras onto a VHS tape. There were two lottery tickets inside the lottery register, one with the number 5051, and the other with the number 5157. Police collected a cash tray from the register, the tray from the lottery machine, and a cigar box.

¶ 8 Detective Guerrero testified that, after removing the VCR, which still had the tape inside, she took it to a multi-agency technical office to have the tape removed. The tape was removed, copied onto a disk, and numerous still images were taken from the video. Detective Guerrero stated that she viewed that videotape probably hundreds of times. The videotape was admitted into evidence and Detective Guerrero testified as to its contents. Detective Guerrero recognized Millhouse approaching the counter in the video and Grzesiak by a cooler. Detective Guerrero also observed a young girl approach the counter and then reappear later in the scene. A few seconds after the young girl and Grzesiak left the store, the suspect walked in wearing a dark green shirt, a black White Sox baseball cap, denim shorts, and a belt. The suspect was holding a silver phone. The video shows the victim Rodriguez talking to the suspect. Then, the suspect checked the doorknob of the entrance to the rear area. The suspect asked for two lottery tickets: 5157 and 5051. The suspect then pointed a gun at Rodriguez through the cash window and ordered her to open the door to the register. The suspect removed money from the cash register and looked under the counter. The suspect then leaded Rodriguez out of the cash register area while asking her for the videotape. The video then showed the suspect escorting Rodriguez toward the rear office. The video ends at that point.

¶ 9 Officer Juan Chavez testified that he viewed the video surveillance tape and recognized one of the customers who entered the store before the suspect came in. That person was Brandon Grzesiak, a young man whose brother had been on Chavez's youth basketball team. Chavez told Detective McCormack that he recognized Grzesiak and went to find him. On August 8, 2005, Officer Chavez saw Grzesiak near a McDonald's located in the 3800 block of South Archer Avenue. Chavez talked to Grzesiak and together they drove to a gas station at 35th Street and South California Avenue near Maggy's where they met with Detective McCormack.

¶ 10 On August 18, 2005, Detective McCormack spoke with Lieutenant John Farrell about the lottery tickets recovered from the scene. One of those tickets was for number 5157, and McCormack ran that number in the Chicago police database as a south side address. McCormack checked the photographs of those who had a “5157” address in Chicago against individuals who looked like the composite put together by Grzesiak as well as the likeness of the offender as seen on the store video. After that search process, Detective McCormack came up with defendant's name. Officer Emmett McClendon testified that he met defendant on September 22, 1998, and at that time, he gave his address as 5157 South Union Avenue. Sharon Moransky, a county employee, testified that she met defendant on March 29, 1999, and that defendant gave his address as 5157 South Union Avenue.

¶ 11 Following Grzesiak's encounter with Chavez, Grzesiak went to the police station and participated in composing a computer-generated sketch of the man he saw at the bus stop. After giving a description of the man he saw, Grzesiak viewed the surveillance video and recognized himself and Millhouse on the tape. On August 19, 2005, Grzesiak identified defendant's photo from a photo array. On April 12, 2007, Grzesiak viewed a lineup and identified defendant as the person he saw outside Maggy's and on the surveillance video pointing a gun at the victim Rodriguez.

¶ 12 Dr. Valerie Arangelovich, a forensic pathologist, performed the autopsies on victims Rodriguez and Guerrero and stated that they both died from single gunshot wounds to the head. Both bullets were fired from the same firearm. The pathologist took fingernail clippings from both the victims' hands and sealed them in an envelope before giving them to the police. The pathologist testified that victim Guerrero exhibited multiple pinpoint abrasions and contusions near his left eye, consistent with being hit with a hard metal handgun. Victim Guerrero in addition to having a gunshot wound on the left side of his head, had a gunshot wound on the mid-portion of his right index finger.

¶ 13 Amy Winters, a DNA analyst from Orchid Cellmark Laboratory, received the swabs of the fingernails of both the victims and performed DNA testing on them. Using the swabs from DNA clippings, she amplified the extracted DNA and produced an electropherogram graph. The graph displayed 13 specific locations (loci) in the DNA. The 13 loci are used in the national DNA database that is used to search profiles.

¶ 14 Sarah Walker analyzed the victims' blood standards. She learned that there was a mixed DNA profile obtained from Guerrero's left-hand fingernail clippings. The minor profile was a man, and 8 of the 13 loci...