People v. Montano

2017 IL App (2d) 140326

77 N.E.3d 114

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

v.Aurelio MONTANO, Defendant-Appellant.

No. 2-14-0326

Appellate Court of Illinois, Second District.

Opinion filed March 30, 2017

Thomas A. Lilien and Ronald C. White, of State Appellate Defender's Office, of Elgin, for appellant.

Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer and Barry W. Jacobs, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE BURKE delivered the judgment of the court, with opinion.

OPINION

¶ 1 In July 1990, Guadalupe Montano, the wife of defendant, Aurelio Montano, went missing, and her body was never found. The State's theory was that defendant, motivated by jealousy, strangled Guadalupe with a rope, wrapped her in a rug, buried her at a horse farm with the help of his brother, told other family members about the killing, and moved the body before the police could find it. In 2014, a jury found defendant guilty of first-degree murder, and the trial court imposed a sentence of natural life imprisonment.

¶ 2 On appeal, defendant argues that he is entitled to a new trial because the court erred in admitting evidence that, 17 years after Guadalupe's disappearance, three detector dogs alerted to the scent of human remains on the rug, which was found buried in an outdoor area of the horse farm. Defendant argues that the evidence did not meet the standard of reliability set forth in Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), and that the error was compounded by the State's closing argument.

¶ 3 Defendant contends that the human-remains-detector-dog evidence is analogous to bloodhound trailing evidence that has been deemed inadmissible to show any factual proposition in a criminal case. See People v. Cruz , 162 Ill.2d 314, 369-73, 205 Ill.Dec. 345, 643 N.E.2d 636 (1994). The State responds that the evidence is more like the narcotics-detector-dog evidence deemed admissible in People v. Moore , 294 Ill.App.3d 410, 228 Ill.Dec. 760, 689 N.E.2d 1181 (1998), where the dog alerted to the defendant's car even though no drugs were subsequently found in it. This case presents the thorny issue of whether a trial court should follow what is arguably Cruz 's bright-line prohibition against odor-detector-dog evidence or reexamine the reliability of the underlying science as contemplated by subsequent supreme court decisions. Here, the trial court reexamined the underlying science, concluded that the State presented an adequate foundation for the admission of the evidence, and found the evidence reliable. We need not decide whether the trial court erred in admitting the human-remains-detector-dog evidence, because the overwhelming evidence of defendant's guilt rendered any potential error harmless beyond a reasonable doubt.

¶ 4 I. BACKGROUND

¶ 5 A. Frye Hearing

¶ 6 The State filed a pretrial motion in limine seeking to introduce expert testimony regarding human-remains-detector-dog "alerts" used during searches. The State proposed testimony that, in this case, three dogs gave positive alerts on the rug and the area where it was found.

¶ 7 Dr. Susan Marie Stejskal testified that she had a Ph.D. in toxicology with a minor in pathology. Dr. Stejskal's credentials also included an undergraduate degree in animal science and a veterinary technology program certificate of completion. Dr. Stejskal testified that she was experienced in the field of veterinary medicine, both as a licensed veterinary technician and with a substantial history of working with tracking dogs. Dr. Stejskal acknowledged on cross-examination that, although she had participated in 80 to 100 trained canine searches for human remains, she actually discovered human remains 7 or 8 times. She explained that the infrequency was the result of her services being requested to rule out areas of interest, such as in cold cases.

¶ 8 The trial court found Dr. Stejskal to be an expert on the subjects of the anatomy and physiology of canine olfaction systems, forensic taphonomy (the study of postmortem changes and decomposition of humans), and the training and deployment of human-remains-detector dogs.

¶ 9 Dr. Stejskal testified that a human-remains-detector dog serves as a tool to locate missing persons through the science of canine olfaction and forensic taphonomy. Dr. Stejskal described the olfactory system as the nostrils and turbinates, or coiled pathways in bone through which air passes when inhaled.

¶ 10 Inside the pathways of the turbinates, the air is filtered by ciliated epithelial cells, humidified, and warmed before it travels to the lungs. The odor that a human or dog detects consists of volatile organic compounds in water vapor suspended in the air. The turbinates contain olfactory sensory cells with chemoreceptors that detect these compounds and send messages through nerves to the olfactory bulb, which processes scent. The chemoreceptors are like taste buds in that distinct chemicals activate different cells to spark an electrical current to the brain.

¶ 11 The olfactory systems of dogs and humans work in similar ways, but dogs' sense of smell is far superior. First, dogs and humans have differently designed nostrils. When a human inhales and exhales, he or she will often breathe the same air and recirculate it. In contrast, a dog's nostrils shunt air to the side every time when exhaled, so different air is inhaled with each breath.

¶ 12 Second, humans have 5 million olfactory sensory cells while Dachshunds have 125 million, German Shepherds have 225 million, and bloodhounds have 300 million. Also, a German Shepherd inhales about five times as much air as a human, because the dog's turbinates are much more extensively coiled. The extensive coiling provides about 20 times more surface area of olfactory sensory cells.

¶ 13 Third, the canine olfactory bulb, which processes the electrical signals sent by the chemoreceptors, is about 40 times larger than a human's. Using photography as an analogy, Dr. Stejskal likened human smell to an "old fuzzy Polaroid" and canine smell to a high definition photograph, with extraordinary detail. Dr. Stejskal explained that a human perceives the world primarily through his or her eyes, but a dog perceives the world through its nose.

¶ 14 Dogs can be trained to locate human remains because their physiology gives them the unique ability to distinguish particular scents. When a detector dog encounters something it has been trained to detect, the dog will "become very, very interested in that odor" and exhibit a change in behavior in that they breathe by sniffing. When a dog switches from normal breathing to sniffing, more of the odor is sent through the turbinates. Each time they take a breath, dogs experience a scent as if they are encountering it for the first time. They do not experience "olfactory fatigue," unlike humans who become desensitized to a scent after continuous exposure.

¶ 15 Dr. Stejskal gave, without objection, a Power Point presentation to describe forensic taphonomy, or the scientific processes of human decomposition and the postmortem changes that occur in different environments. The four main stages of decomposition are the dying of cells, early decomposition, putrefaction, and decay or postputrefaction.

¶ 16 After a person dies, cells begin to die from elevated acidity levels. The cells that die first have the highest energy demand and blood supply, like in the heart and lungs.

¶ 17 In early decomposition, the body goes through (1) algor mortis, or a decrease in body temperature; (2) livor mortis, or the gravitational pooling of blood; and (3) rigor mortis, or stiffening due to the contraction of muscle fibers. The duration of each mortis depends on environmental conditions.

¶ 18 Putrefaction is "the stage of decomposition which we associate with bloating and gas and smells" caused by microbes and bacteria that reproduce as they break down cells into carbohydrates, fats, and proteins. The body becomes very fragile, and "skin slippage" occurs, in which skin can pull away from the body and become attached to an object, such as a tarp, that might have covered it. The cells begin to separate from one another, internal organs break down, and liquefaction occurs, where parts of the body turn to liquid and spread to the environment. The body goes from bloated to flattened. The carbohydrates, fats, and proteins are broken down further into simpler building blocks. The final stage is decay, or postputrefaction, where the rest of the tissues break down. Eventually, skeletal remains are all that is left behind.

¶ 19 Many different chemicals are produced during the different stages of human decomposition occurring in different conditions, and dogs can be trained to identify the odors. For example, bloating causes methane and hydrogen sulfide gases. Also, when a body is in an environment with low oxygen levels and high water levels, certain bacteria can produce adipocere, or "grave wax." Adipocere emits a strong pungent odor. If tissues are in an area without the additive effect of soil microbes, the chemical composition will be slightly different. Dr. Stejskal testified that the Oak Ridge National Laboratory at the University of Tennessee, Florida International University, and the Federal Bureau of Investigation (FBI) have researched the different chemicals and the odors they produce.

¶ 20 Dr. Stejskal also testified to the training of dogs to detect human remains. Dr. Stejskal had been involved in such training for 10 years, but she was not involved in the training of the dogs used in this case. According to Dr. Stejskal, training a detector dog consists of repeatedly exposing the dog to the source of a particular odor and then rewarding the dog each time it demonstrates interest in that odor. The dog is then trained to perform an "alert" that connects the discovery of the odor to a behavior that is rewarded. Specifically, human-remains-detector dogs are trained...