People v. Nixon

36 N.E.3d 349

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Carlton NIXON, Defendant–Appellant.

No. 1–13–0132.

Appellate Court of Illinois, First District, Fifth Division.

June 26, 2015.

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

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Mary L. Boland, and Brian K. Hodes, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Defendant Carlton Nixon was found guilty after a jury trial of aggravated sexual assault and sentenced to 30 years in the Illinois Department of Corrections (IDOC).

¶ 2 On this direct appeal, both the State and the defense request this court to vacate a $100 Crime Lab Drug Analysis Fee, which was erroneously imposed upon defendant since it is applicable only to certain drug offenses. 730 ILCS 5/5–9–1.4(b) (West 2012).¹ Thus, we order this fee vacated. People v. Alvidrez, 2014 IL App (1st) 121740, ¶ 35, 386 Ill.Dec. 801, 21 N.E.3d 720 (vacating fines and fees on appeal that were erroneously imposed by the trial court); People v. Price, 375 Ill.App.3d 684, 702, 313 Ill.Dec. 829, 873 N.E.2d 453 (2007) (vacating a fee and fine on appeal that was “erroneously assessed by the trial court”).

¶ 3 In addition, defendant asks us to reverse his conviction and remand for a new trial on the ground that the trial court erred in allowing the State to elicit testimony about a business record: (1) where the State allegedly failed to establish a proper foundation for the record; and (2) where the State allegedly denied the record's existence. As for the record itself, as opposed to the testimony about it, the trial court stated that it admitted the record “into evidence to preserve it for the record but not to publish it to the jury.” The court stated that the only purpose for admitting the record itself was “[i]f it should be necessary for appellate review of that.” In addition, neither side mentioned the record or the testimony about it during closing argument. Thus, defendant's claim is directed solely to the eliciting of testimony but does not concern argument.

¶ 4 In response, the State argues, among other things, that testimony concerning the record was harmless beyond a reasonable doubt in light of the other overwhelming evidence against defendant. The evidence identifying defendant as the assailant included: (1) a full DNA match between defendant's DNA profile and the DNA profile from the rape kit swab, where the alleles matched at all 13 loci; (2) the victim's selection of defendant as her assailant from a photographic array; and (3) other crimes evidence which included testimony by the victim of an attempt sexual assault concerning a similar offense by defendant. However, defendant does not contest the State's argument that the other evidence was overwhelming and does not challenge the sufficiency of the evidence against him.

¶ 5 Defendant claims that his case hinged on creating a reasonable doubt based on evidence that the victim previously selected another man, Eric Lynon, out of a photographic array as possibly her assailant. At trial, the State elicited testimony about the disputed record to the effect that Lynon's DNA profile was entered into the government's DNA database shortly after the profile from the rape swab kit was entered and that no association was reported. As noted, defendant does not contest that the other evidence against him was overwhelming; instead he claims that his defense was harmed, that he was denied the right to a fair trial and that the trial court erred in denying his motion for a mistrial.

¶ 6 For the following reasons, we do not find persuasive defendant's claim for a new trial, and we affirm his conviction and sentence. However, we vacate his $100 Crime Lab Drug Analysis Fee.

¶ 7 BACKGROUND

¶ 8 On June 13, 2007, a grand jury charged defendant with the aggravated criminal sexual assault of J.O., which occurred on August 17, 1999. After a jury trial, he was convicted on September 13, 2012, and sentenced on December 13, 2012, to 30 years in the Illinois Department of Corrections.

¶ 9 Since the sole issues on appeal concern a record about Eric Lynon and his DNA profile, we provide here a detailed summary of the pretrial proceedings concerning Lynon, which occurred in 2011 and 2012.

¶ 10 I. 2011 Pretrial Proceedings Concerning Lynon's DNA Profile

¶ 11 A. 2011 Defense Motions

¶ 12 On March 30, 2011, defendant filed a motion to dismiss on the ground that the State had produced an incomplete police report in discovery. The report, which was attached to defendant's motion, is dated September 23, 1999, and is the “Supplementary Report” of Officer “L. Thezan.”² The report stated that it was “an Area 3 * * * Sexual Assault Progress Report” and that it concerned the victim in the case at bar. In his motion, defendant claimed that the report contained more than the two pages produced and that the report referred to photographs of possible suspects, including Eric Lynon, which had not been produced.

¶ 13 On April 8, 2011, defendant filed a motion to produce “all material relating to Eric Lynon.” Attached to the motion was exhibit A, which was the previously missing third page of Officer Thezan's report, and which stated in full:

“The R/D then showed [the victim] a group of five black and white computer generated photographs which included a photograph of Eric Lynon. When she came to the photograph of Lynon she put it aside. She looked at the rest of the photographs and then returned to Eric Lynon stating that she believed that he is the person that attacked her that his picture had jumped out at her.^[ [^{3 ]}

The R/D then returned to the Area. This investigation continues pending the comparison of the DNA evidence in this case and the DNA of Eric Lynon.”

¶ 14 Attached as exhibit B to defendant's motion was a “ General Progress Report,” dated August 17, 1999, from the Chicago police department, and it stated in full:

“A buccal swab was taken from the victim's boyfriend, [name], and will be compared against the DNA found in the victim.

Contacted Lambatos ^{[ 4 ]} from the State Crime Lab who will have Springfield compare the DNA found in the victim against [Officer] Thezan's and [Detective] Elmore's suspect, Eric Lynon.

[Detective] Tallen”⁵

¶ 15 On December 21, 2011, defendant filed a supplemental motion to produce, in which he stated that he had not received: (1) an arrest report for Lynon; (2) a lineup/photo advisory form signed by the victim in relation to the photo array mentioned in Officer Thezan's September 23, 1999, report; (3) any notes, reports or documentation concerning any interview of Lynon; (4) any “DNA material relating to Eric Lynon”; or (5) an order for a buccal swab for Lynon. The motion also stated that defendant had received a document which stated that Anthony McNeal was “ ‘no match’ ” to this case; but that it had not received any police reports, lab reports or documentation concerning Anthony McNeal.

¶ 16 B. 2011 Hearings

¶ 17 1. July and August 2011

¶ 18 On July 28, 2011, the parties appeared in court, and defendant asked the trial court to direct someone from the Illinois State Police Crime Lab to come to court so that they could “resolve once and for all if there's any more outstanding material at the State lab.” The trial court agreed, stating that it “want[ed] some authority from the lab.”

¶ 19 At the next hearing, on August 18, 2011, Cecilia Doyle appeared⁶ and she informed the court that she was “the biology DNA section chief of the Illinois State Police” lab in Chicago. The trial court asked her the following questions:

“THE COURT: So do you know right now if there [are] any reports regarding Eric Lynon, or if you don't, would you be able to assure us that there will be a thorough check and an answer given one way or another on another date?

DOYLE: I do know.

THE COURT: Okay. Could you please let us know.

DOYLE: Certainly. Back in April, on April 14th, actually, [defense counsel] had called me at the lab and had faxed over this information, and I performed a search of comps for Eric Lynon's name. And also, based on the information in this paperwork, the SID number, FBI number and date of birth for Eric Lynon, we did a search of CODIS,^{[ 7 ]} and his name did not come up in CODIS. And I provided that information to [defense counsel] the next day.

THE COURT: Back in April?

DOYLE: Back in April. I left a message on his phone.

THE COURT: Thank you. Do you think there is any—I'm satisfied by Ms. Doyle assuring me that she has done the search, that there is nothing else at the lab.”

¶ 20 Then the trial court asked defense counsel if he had any “information to indicate to the contrary.” Defense counsel responded that it was “inexplicable” to him how the State Lab could have no information in light of the specific references in the police officers' reports to both the crime lab and DNA comparisons for Lynon.

¶ 21 The trial court then gave defense counsel an opportunity to question Doyle:

“DEFENSE COUNSEL: Ms. Doyle, does the name Lambatos have any significance to you?

DOYLE: Is it Sandra Lambatos? She was an analyst at the Chicago crime lab for the State. * * *

DEFENSE COUNSEL: You are aware that she worked on this case; correct?

DOYLE: From the paperwork that you provided me. I didn't have a recollection that she worked on the case.

DEFENSE COUNSEL: Do you know if the DNA evidence of the victim in this case was compared to Eric Lynon?

DOYLE: There was no Eric Lynon in our comp system, which is our computer assisted laboratory information management system, and that is where we track all of the evidence that comes into the lab. So if it hasn't been entered into that system, it hasn't come into the lab.”

¶ 22 In the above exchange, defense counsel questioned Doyle about Sandra Lambatos, whose name appeared in Detective Tallen's “General Progress Report,” dated August 17,...