FIRST DIVISION
April 28, 2003

No. 1-99-2606

IN THE APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

JUSTICE JAMES F. SMITH delivered the opinion of the court:

Following a bench trial, defendant, Vernon Watson, was found guilty of two counts ofaggravated criminal sexual assault and one count of aggravated kidnapping. Prior to sentencing,the State petitioned the court to conduct an habitual criminal hearing pursuant to 720 ILCS 5/33B(West 1998). A hearing was conducted accordingly, after which defendant was declared anhabitual criminal, and sentenced to natural life in prison. From his conviction and sentence,defendant now appeals.

Factual Background

Procedural History

The sexual assault in this case took place on May 15, 1989. The victim, C.A., was unableto see her attacker's face, nor could she identify him from a line-up or a voice line-up. DNAsamples were obtained from the victim, defendant, and the victim's husband, J.A., and sent to theFBI laboratory in Washington D.C. for testing, the results of which were questioned bydefendant, who moved to exclude them from the evidence at trial.

A Frye hearing was held in 1991, after which the trial court ruled that while themethodology used in declaring a DNA match was generally accepted within the relevantscientific community, the procedures employed in calculating the statistical probability of amatch, known as the product rule, were not. The court accordingly granted defendant's motion toexclude the results of the DNA testing.

The People took an appeal, and on January 28, 1994, this court vacated the trial court'sruling, directing it to consider an alternative method of calculating the statistical significance of amatch, known as the "ceiling principle," and to make a determination with respect to itsacceptance in the relevant scientific community. People v. Watson, 257 Ill. App. 3d 915 (1994).

The People filed a petition for leave to appeal, which was denied on October 6, 1994. People v. Watson, 157 Ill. 2d 519 (1994). The People then filed a motion to reconsider thatdenial, and a motion to consolidate the case with another case, Franson v. Micelli, 172 Ill. 2d 352(1996), then pending before the Illinois Supreme Court. The Court denied the motion toconsolidate, but vacated its October 6, 1994 order and continued the matter on its docket. Peoplev. Watson, 650 N.E.2d 1037 (1995). Eventually, the Court denied the petition for leave toappeal. People v. Watson, 168 Ill. 2d 621 (1996). The mandate was issued, and the casereturned to the trial court. On remand, the trial court granted the State's motion to reconsider thenecessity of holding a second Frye hearing, in light of two recent supreme court decisions on theacceptability of the product rule. The court ruled that a second Frye hearing was unnecessary,and trial at last commenced.

The evidence presented at trial was as follows.

The Sexual Assault

In 1989, the victim was 24 years old, and lived in the Beverly neighborhood of Chicago,with her husband, J.A. At the time, the victim worked in the Chicago Loop area, and commutedto her job via the Metra line. At approximately 7:20 a.m. on May 29, 1989, the victim began thewalk from her home to the train station at 99th Street. She recalled that the day was warm andsunny. She listened to a Sony Walkman as she proceeded.

As she approached the corner of 91st and Winchester, the victim saw a black maleapproximately four to five houses down Winchester, wearing a blue jogging suit and a gray hat. The man was jogging towards her.

She crossed at the intersection of 91st and Winchester, and continued onto a cementfootpath to the station, that ran through the Dan Ryan Woods. The area was well lit. When shewas approximately halfway down the footpath, the victim was suddenly grabbed from behindaround her shoulders, and pulled backwards as a hand was placed over her mouth. She noticedthat her attacker's hand was black, and that he was wearing a dark blue nylon jogging jacket, withtwo red stripes down the sleeves.

The attacker told the victim that he had a pistol and would kill her if she screamed. Heforcefully pushed her into the woods, away from the cement path and down a dirt path, frombehind. She felt something hard on her back, that she thought was a gun. Though she could notsee her attacker's face, the victim sensed that he was a bit taller than her 5'4". As they went downthe trail, he repeated several times that he would kill her if she screamed.

They traveled approximately 100 feet off the cement footpath and then stopped in a smallclearing. Remaining behind her, the attacker removed his hands from the victim's mouth anddemanded money. She gave him the money she had in her purse. He then demanded herjewelry, so she handed over her wedding bands and a ruby ring, along with her watch. Theattacker pulled at the pearl necklace that was around her neck, causing it to break and the pearlsto scatter.

The victim was then commanded to take off her clothes and to place them into a blue totebag she had been carrying. She undressed and placed her clothes in the bag as instructed. Theattacker took from the victim the sweater that she had been wearing and, after pushing her downonto her back, he placed the sweater over her face, and proceeded to have sexual intercourse withher. After he ejaculated, the attacker stood up. He told the victim to wait ten minutes beforerising, and warned that if she did not, he would return and kill her.

The victim waited just two to three minutes before getting up to find her clothes. Theattacker at that point had disappeared. She wiped her vaginal area with her bra, which she didnot put on, then donned her pants and sweater, and looked around for the rest of her belongings. She did not see her purse, her Walkman, her keys or her credit cards; the papers from herbriefcase were strewn about. The victim left the scene as it was, for the police to find, and ranout of the woods.

She ran to a home at the corner of 91st and Pleasant Streets, though she did not knowwho lived there. Her knock on the front door was answered by Mrs. Martin, who took her in andcalled 911. The victim called her husband and her sister, then asked for permission to take ashower, which was granted. Following her shower, the victim dressed and went downstairs,where the police had just arrived. She spoke to the officers and told them that her attacker wasblack, between twenty and thirty years old, and approximately 5'7", and 140 lbs. She also relatedthat he had been wearing a dark blue nylon sweat jacket, with two red stripes going down theouter sleeves, and a gray knit cap.

The victim was taken to the emergency department of Little Company of Mary Hospital,where she underwent a physical examination and testing. She was also questioned in greaterdetail about the attack by a detective, to whom she gave the same physical description of herattacker as she had given earlier.

Four days later, on May 29, 1989, the victim received a phone-call from the detectives inthis case, during which she was asked to come to the police station to view a line-up. She went,and although she got an "extremely bad feeling" when she saw defendant in the line-up, andnoted that he was of the same height and build as her attacker, she could not positively identifyhim, not having seen his face. She was also asked to participate in a voice line-up, but did notrecognize the defendant's voice, and instead mistakenly identified a Chicago Police Officer asbeing the voice of her attacker. She was very nervous at the time.

Pursuant to a police request, on July 7, 1989, the victim went back to Little Company ofMary Hospital to provide samples of her blood and saliva for testing and comparison. Later thatmonth, the victim's husband, J.A., submitted samples of his blood an saliva as well.

William McGlynn testified that he is an attorney, and does criminal defense work in aprivate law firm. Prior to that, he was a Cook County Assistant State's Attorney, and anAssistant Attorney General, prior to which he was a Chicago Police Officer for ten years.

In May 1989, McGlynn lived at 9100 S. Winchester, in the city of Chicago. On May 25,1989, at approximately 7:30 a.m., McGlynn was waiting for his daughter to finish getting ready,so that he could drive her downtown to work. He was standing near his front door, lookingoutside into the street. McGlynn noticed a young man jogging down the middle of the street pasthim. This individual was black, and wore a gray skull cap and a blue jogging suit with redstripes on it. This person caught McGlynn's attention in particular because May 25 was a verywarm day, and this individual, though jogging in warm clothing, did not appear to be sufferingfrom the heat. The person ran to within 30 feet of McGlynn.

McGlynn later drove his daughter downtown, and made a court appearance. He wasreturning home in the early afternoon, when he noticed a commotion involving the police. Hesaw Detective Bill Egan, whom he knew from his time with the Chicago Police, and asked Det.Egan what was going on. Det. Egan informed McGlynn that a girl had been attacked in thewoods, and he gave to McGlynn a description of the individual they were looking for. McGlynntold him that he'd seen a person fitting that description, and that he felt confident that he couldidentify that person from a line-up.

McGlynn was subsequently shown a photo array, which included a picture of defendantthat had been taken 15 years earlier. From that array, McGlynn failed to identify defendant. Hewas later shown a photo array with a current picture of defendant, and from that array, identifieddefendant as the individual he had seen on the morning of May 25. McGlynn additionallyidentified defendant from a line-up at the police station on May 29 as the same individual he hadseen running past his house on the day of the attack.

Officer Rodney Schmitt testified that he responded to a call on the morning of May 25,1989, pursuant to which he went to the home of Mrs. Martin. There, Officer Schmitt spoke toColleen, after which he sent out a flash message for the offender, identifying him as a male black,approximately 20-30 years of age, 5'7" tall, 140 lbs. and wearing a gray skull cap and a dark bluejogging suit with red stripes going down the side.

Detective William Egan testified that on May 25, 1989, at approximately 9:30 a.m., hewas assigned to investigate a criminal sexual assault. Pursuant to that assignment, he went toLittle Company of Mary Hospital in Evergreen Park, where he met with Officer Schmitt, andthen the victim. The victim gave to Det. Egan a description of her attacker. He received thevictim's clothing, which included a bra, pants, a sweater and a pair of tennis shoes from medicalpersonnel, placed the items in two brown paper bags, and gave them to Jeremiah Murray, anevidence technician.

Later that day, Det. Egan spoke with McGlynn, who told him he had seen an individualmatching the attacker's description. Det. Egan additionally received a telephone call at homefrom a Lieutenant Joseph Logue of the 22nd District. Lt. Logue informed him that several yearspreviously, one of his sergeants had arrested a subject with the same m.o. as in the victim'sattack, in the same area. This individual had, just two to three weeks prior been released fromthe penitentiary, having been convicted in the previous attack and having completed his sentence. Lt. Logue gave the name of defendant.

Det. Egan obtained from the officers of the 22nd District a photograph of defendant,taken in 1975, which he placed in a photo array and showed to McGlynn. McGlynn was not ableto identify defendant from that array, but he did later identify defendant from a current photo thatwas part of a separate array.

Pursuant to McGlynn's identification of defendant from that array on May 29, Det. Eganwent to 9328 S. Laflin, which was defendant's last known address. He obtained permission toenter and to speak to defendant, after which he took defendant to the police station where a line-up was conducted. At the station, defendant told Det. Egan that he was 32, stood 5'8" tall, andweighed 143 lbs.

Forensic Evidence

Dr. Andrew Behl testified that he is an emergency room physician, and was assigned toLittle Company of Mary Hospital in May of 1989. On May 25 at approximately 10:15 a.m., Dr.Behl saw the victim following her sexual assault. He took from her a history and performed onher an internal and external physical exam. Dr. Behl also ordered lab tests, including a urinalysisand a gram stain of the cervix, both of which indicated the presence of sperm. Dr. Behl obtainedan evidence kit, known as a sexual assault kit, into which he placed samples from the victim,including a hair specimen, swabs, and blood samples. This box would have been routinelysealed and then turned over to the police.

Chicago Police Officer Michael Pelka testified that he received the sealed evidencecollection kit in this case from the emergency room of Little Company of Mary Hospital on May25, and inventoried it for delivery to the lab.

On July 5, 1989, pursuant to a court order, Cermak Health Services technical managerManuel Sanchez drew blood and took a saliva sample from defendant, who was accompanied byDetective Sue Raducha. Sanchez sealed the evidence in an envelope and gave it to DetectiveRaducha, who placed it in a plastic bag and took it to the crime lab.

Pamela Fish, testified that she is a molecular biologist who, in 1989, was employed as aserologist by the Chicago Police crime lab. On June 7, 1989, Fish received Colleen's sealedsexual assault kit, along with two bags of her clothing, for the purpose of examining them for thepresence of biological fluids, such as blood and semen. Fish conducted testing on the evidence,and discovered that Colleen's pants and bra were both positive for the presence of semen andspermatozoa. After the testing was completed, Fish took extracts from the items to preservethem for future testing and returned them to the evidence and recovered property division forstorage.

On July 5, Fish received blood and saliva samples taken from defendant. On these sheperformed ABO blood typing, which revealed that defendant is of blood type A. On July 8, Fishreceived blood and saliva samples from the victim on which she also performed ABO bloodtyping, which revealed that the victim is of blood type O.

On August 7, 1989. Fish received a written request to have the samples from this casesent to the FBI lab in Washington D.C. for DNA analysis. Fish sent the samples to Hal Deadmanat the FBI lab, and asked him to perform DNA analysis on the blood standards from the victimand defendant, as well as on the semen stains that were identified on the bra, pants, and a swab.

On November 21, 1989, Fish was again on duty in the crime lab, and received evidence⁽¹⁾labeled as blood taken from J.A., the victim's husband. On this blood, Fish performed ABOblood typing, which revealed that J.A. is of blood type O. This standard was then sent to HalDeadman at the FBI lab for analysis as well.

Fish testified that serological testing performed on semen stains found on the victim's braand pants led her to conclude that defendant could not be excluded as a possible contributor tothe seminal material on these items; J.A. could be excluded as a contributor as to each item.

Dr. Harold Deadman testified that he has a Ph.D in organic chemistry. In 1989, Dr.Deadman was a special agent assigned to the FBI's DNA laboratory.⁽²⁾ In August of 1989, Dr.Deadman began the examination of the items of evidence submitted in this case: cuttings fromthe victims pants and bra and a swab each containing seminal fluid, and the blood samples fromthe victim and defendant. Later, Dr. Deadman obtained a blood sample from J.A. as well.

Dr. Deadman's testing led him to conclude, in January of 1990, that the statisticalsignificance of the matches between the DNA of defendant and the DNA examined in this casewas 1 in 90 million of the black population. Later testing conducted by Dr. Deadman onadditional probes led him to declare a match in a reported frequency of 1 in 625 million.

Dr. Seymour Geisser testified that he is an expert in biostatistics.⁽³⁾ Dr. Geisser wascritical of the statistical methodology of the DNA profile frequency calculations. Dr. Geissertestified that the samples are potentially biased; the process ignores sampling errors; the use ofthe product rule is improper for statistically independent data; there is a lack of reporting inproficiency; the testing is not being done in a blind fashion, and the binning technique is flawed.

Dr. Gesisser conceded that he himself had never conducted an RFLP analysis, nor did heindependently analyze the data in this case. He acknowledged that the NRC-II Committee foundnothing objectionable about the FBI's methods.

Destruction of Evidence

William Frost testified that he is an Assistant State's attorney who was formerly employedby the Chicago Police Department as the supervisor of the evidence and recovered Property("ERPS") division. Frost was asked by the State's Attorney prosecuting this matter to look intothe evidence relating to defendant's case, and to gather tracers pertaining to that evidence.

He explained that a tracer is a form attached to each item of inventory sent to ERPS. Tracers are used in the ordinary course of business by the police to track the location of evidence. They contain instructions with respect to the disposition of the evidence, including whether andwhen the evidence is to be destroyed. In this case, Det. Egan signed the tracers for the itemsrecovered from the crime scene, for the bags of clothing, the victim's purse, and the sexualassault kit. Each of those tracers indicated that destruction was to take place after three yearstime, unless ERPS was otherwise notified.⁽⁴⁾ The blood and saliva samples were signed by Det.Raducha, who, at the time of trial, was deceased. Det. Wilkins, according to department policy,signed those tracers after Raducha's death. Those items were also marked for destructionfollowing a three year period.

Detective Egan testified that he did not know that DNA evidence would play a role in theprosecution of this case, nor had he ever worked on a case with DNA evidence at the time of hishandling of the tracers at issue. None of the detectives in this case consulted the States Attorneysprior to signing the tracers.

Dr. Deadman testified that there was enough DNA in this left over at the time of trial toretest.

Other Crimes Evidence

For its tendency to prove identity, the People sought to introduce evidence of a robberyand attempted rape that took place in September 1989, and an armed robbery and rape that tookplace in October 1980, both committed by defendant.

The 1980 incident took place near 88th and Longwood in the Beverly neighborhood ofChicago, as R.W. was walking to work. She entered a pathway, and saw defendant jogging. Asshe continued on, he approached and grabbed her by the throat, and pulled her further into thewoods. He picked up a large stick and threatened to injure R.W. if she did not comply. Defendant told her to disrobe, and then had forcible intercourse with R.W., and robbed her ofcertain items including $100 case, a gold necklace, several rings and a bracelet. When defendantwas arrested for that attack, he was wearing R.W.'s jewelry. It was for the assault on R.W. thatdefendant had been incarcerated from 1980 through 1989. He was approximately three weeksout of the penitentiary when the victim in the instant case was attacked.

The September 1989 incident took place at approximately 94th and Claremont Streets inthe Beverly neighborhood of Chicago. The victim, K.B., was on her way to the Rock Island trainstation, from which she commuted to her job in the downtown area. Just after 6:00 a.m., she sawa black man walking across the street from her. She paid particular attention to him, because itwas early in the morning for others to be out, and because defendant was walking in the oppositedirection from the train station.

Defendant crossed the street and approached K.B. He grabbed the front of her raincoat,and warned her that if she screamed, he would kill her. He propelled her into an alley, and toldher to give him her money and her jewelry. K.B. handed over her wedding rings, her watch andearrings, and her electronic organizer. Defendant ordered K.B. to take off her clothes, and aftershe'd removed her bra, he touched her breast. At that point, K.B. saw a light on in a nearbyhome, and she ran to it and pounded on the door. Defendant did not pursue her, and the policewere called. K.B. had been able to see defendant, and later picked him out of a line-up.

The trial court ruled that the 1989 attack would be admitted into evidence, but that the1980 incident was too remote in time to be admissible.

Findings and Sentencing

At the close of evidence, defendant moved for a directed finding. This motion wasdenied without argument.

On May 4, 1999, the court found defendant guilty of two counts of aggravated criminalsexual assault and one count of aggravated kidnapping. Based on separate prior convictions forarmed robbery and rape, the People sought to have defendant declared an habitual criminal. Atthe hearing, the People introduced a certified statement of conviction for armed robbery datedJuly 21, 1976, a certified statement of conviction for rape dated March 10, 1981, and a certifiedstatement of conviction for aggravated criminal sexual assault, dated April 5, 1999.

The People also introduced the testimony of Officer Thomas Tansey, who testified in thecase of R.W. of October 8, 1980.

The court found defendant eligible to be sentenced as an habitual criminal to life inprison. Defendant filed post trial and post sentencing motions, both of which were denied.

In this appeal, defendant raises the following issues for our consideration: 1) whether thescientific evidence should have been suppressed where the State obtained blood samples notpursuant to a warrant but to a grand jury subpoena; 2) whether the destruction of the sex kit, theblood and saliva specimens and the victim's clothing violated defendant's right to due process; 3)whether the trial court's restriction of defense counsel's cross-examination violated defendant'sright to due process; 4) whether the evidence proved defendant guilty beyond a reasonable doubt;5) whether the admission of collateral crimes evidence was reversible error; 6) whether the trialcourt's failure to conduct a second Frye hearing was in error and 7) whether the natural lifesentence under the Habitual Criminal Act was improper.

We consider each issue in turn.

I. Failure to Suppress the Scientific Evidence

Defendant contends that the scientific evidence in this case (the ABO typing and theDNA evidence) should have been suppressed where the State abused the power of a grand jurysubpoena to compel him to donate blood, saliva and hair.

On June 1, 1989, defendant was served with a grand jury subpoena, in which he wasinstructed to accompany police officers to Little Company of Mary Hospital to provide samplesof his head hair, pubic hair, saliva and blood. Although he accompanied the officers to thehospital as instructed, once there, defendant refused to sign a consent form, and the samples werenot taken. On June 13, defendant was served with a second subpoena, calling for the samesamples; this time he refused to go to the hospital at all. On June 29, the State petitioned thecourt for a rule to show cause as to why defendant should not be held in contempt for his refusalto comply with the grand jury subpoenas. On July 3, defendant was seized on a body attachment,and brought before the chief judge to answer the rule to show cause. Again, defendant refused toprovide the samples, and this time was jailed for contempt of court.

After two days, defendant purged himself of the contempt by consenting to the taking ofthe samples, a decision he contends was a result of the violation of his Fourth Amendmentrights.⁽⁵⁾

Before the trial court in 1990, defendant filed a "motion to quash search warrant andsuppress unlawfully seized evidence," in which he argued that since he was released prior to theissuance of the grand jury subpoena, there was no probable cause for its issuance, and no basisfor a search warrant, and thus the evidence was improperly seized. In 1998 when the issue wasagain raised by defendant, there was a discussion as to whether the evidence was seized pursuantto the grand jury process or the search warrant subsequently issued. The trial court permitteddefendant to file a motion to quash his initial arrest, reasoning that the absence or presence ofprobable cause for that arrest affected the validity of the grand jury subpoena. Defendant filedthe motion; it was heard and denied, as the trial court found that there was probable cause tosupport both the initial arrest and the grand jury subpoena.

Defendant now contends that even if there was probable cause for his initial arrest, agrand jury cannot subpoena blood, saliva and hair samples because a search warrant was requiredto collect the biological evidence. We consider first whether there was probable cause to supportdefendant's initial arrest.

Probable cause is "reasonable ground to believe that the suspect has committed, or iscommitting a felony." People v. Sims, 167 Ill. 2d 483, 500 (1995). Police officers have probablecause to arrest a defendant when "facts exist that would lead a reasonable person standing in theshoes of the police officers to conclude that a crime has been committed and the defendant is theperson who committed the crime." People v. Robinson, 167 Ill. 2d 397, 405 (1995). Probablecause is determined "according to the totality of the circumstances confronting the officers at thetime of the arrest." Sims, 167 Ill. 2d at 500.

When the officers arrested defendant, they knew the following: the victim was attackedby a black male jogger, who was approximately 5'7", weighed 150-155 lbs., and wore a dark bluenylon jacket with red stripes and a gray skullcap; attorney William McGlynn, a former ChicagoPolice Officer and assistant states attorney, saw a male black jogger bearing the same physicaldescription and wearing the same clothes just minutes before the attack in the area where it tookplace; McGlynn later identified that individual as defendant; Detective Egan learned from the22nd District police that defendant had been released from the penitentiary a few weeks priorafter having served time for a similar offense in the same area in 1980, and defendant was livingless than a mile from where the attack took place. The trial court considered this evidence, anddetermined that there was probable cause to support defendant's arrest. The motion to quash andsuppress was accordingly denied.

A trial court's ruling on a motion to suppress is generally entitled to great deference, andthis court will not disturb it on review unless it is against the manifest weight of the evidence.People v. Smith, 315 Ill. App. 3d 772, 775 (2000). In our view, based on the facts known topolice in this case at the time of defendants' arrest, probable cause existed to believe a crime hadbeen committed and that defendant committed the crime. Accordingly, we find the trial court'sruling on the motion to suppress was not against the manifest weight of the evidence.

We consider next whether blood, hair and saliva samples can be obtained via a grand jurysubpoena.

The purpose of a grand jury investigation is both to exonerate individuals under suspicionof having committed a crime (People v. Rogers, 92 Ill. 2d 283, 289 (1982)) and to establish theprobably cause necessary for the arrest of suspected felons (Phillips v. Graham, 86 Ill. 2d 874,284 (1981)). A specific charge need not be pending to trigger the grand jury's right to issuesubpoenas; such a requirement would unduly trammel the investigation. In re May 1991 WillCounty Grand Jury, 152 Ill. 2d 381, 392 (1992) citing People v. Allen, 410 Ill. 508, 517 (1951).

Through its subpoena powers, the grand jury is authorized to compel the production ofphysical evidence. Will County Grand Jury, 152 Ill. 2d at 389. In Illinois, however, this power islimited by the Fourth Amendment's protection against unreasonable searches and seizures as wellas the protection against invasion of privacy found in the Illinois Constitution. Will CountyGrand Jury, 152 Ill. 2d at 389-92. The greater the intrusion on the individual, the greater theshowing of suspicion that will be necessary to compel production. Will County Grand Jury, 152Ill. 2d at 393. Where physical evidence of an invasive nature is sought, probable cause must beshown. Will County Grand Jury, 152 Ill. 2d at 399-400; People v. Payne, 282 Ill. App. 3d 307,310 (1996). Accordingly, our inquiry is whether the grand jury subpoena issued in this case thatcalled for the hair, blood and saliva of defendant was supported by probable cause.

As we have determined, the information available to police at the time of defendant'sinitial arrest was sufficient to support a finding of probable cause. Defendant was subsequentlyreleased from custody pending further investigation. The grand jury proceedings which resultedin the challenged subpoena took place approximately 2 months thereafter. Defendant argues thatthe same probable cause that supported his initial arrest cannot also support the grand jurysubpoena, since the decision to release him from custody following the initial arrest wastantamount to a finding that probable cause no longer existed.

It is true that to justify a present search, probable cause must be current and not rest uponfacts which existed in the past, unless there is a reason to believe those facts are still in existence. People v. Thompkins, 121 Ill. 2d 401 (1988). Nevertheless there is no arbitrary cutoff period thatcan be expressed in days or weeks beyond which probable cause ceases to exist. See, e.g., Thompkins, 121 Ill. 2d at 435-36 (there was probable cause for search warrant for bloodstains ona concrete floor 83 days after murder).

In this case, it was confirmed after defendant's initial arrest by Pamela Fish's testing thatspermatozoa was present in the urinalysis and gram stain obtained from the victim, and that thesesamples were in turn suitable for comparison tests. The grand jury could well have concludedbased on the information known to police at the time of defendant's initial arrest that a sexualassault took place and was committed by defendant, and based on the information thatspermatozoa suitable for comparison was taken from the victim, that probable cause existed toorder its comparison with samples from the defendant. We find this conclusion to havecomported with the manifest weight of the evidence.

Because we find that there was probable cause to support the grand jury subpoena, thefact that the subpoena called for blood, hair and saliva samples was not improper or otherwise inviolation of fourth amendment principles. Will County Grand Jury, 152 Ill. 2d at 399-400.

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VI. Failure to Hold a Second Frye Hearing

Defendant next contends that the trial court violated the "law of the case" doctrine infailing to hold a second Frye hearing upon remand, in accordance with this court's mandate inPeople v. Watson, 257 Ill. App. 3d 915 (1994).

Following the original Frye hearing in this case, in February and March of 1991, the trialcourt ruled that, while the methodology used in declaring a DNA match was generally acceptedwithin the relevant scientific community, the procedure employed in calculating the statisticalprobability of a match, specifically, the product rule, was not. Accordingly, the court granteddefendant's motion to exclude the results of the DNA testing. The State took an appeal, and in itsdecision, this court agreed with the trial court's finding that the FBI's RFLP matching technique isgenerally accepted in the relevant scientific community. As to the suppression of evidence basedon the lack of acceptance for the product rule as a means of calculating statistical significance,this court vacated the trial court's ruling, and directed it to hold a second Frye to consider thescientific acceptance of the "ceiling principle" method instead.

A series of State appeals followed, culminating in remand to the trial court nearly threeyears later. At that time, the State made a motion to reconsider the necessity of holding a secondFrye hearing in light of the recent decisions of the supreme court in People v. Miller, 173 Ill. 2d167 (1996) and People v. Hickey, 178 Ill. 2d 256 (1997), which gave approval to the product ruleas a method of calculating the statistical significance of a DNA match. After considering theapplicability of the two decisions, the trial court found that they were dispositive of the issue, andgranted the State's motion.

While a trial court is normally bound on remand by this court's disposition of questions oflaw, there is an exception to the "law of the case" doctrine where a higher reviewing court,subsequent to the lower reviewing court's decision, makes a contrary ruling on the same issue. People v. Melka, 319 Ill. App. 3d 431, 438-39 (2001).

In Miller, the supreme court rejected the defendant's argument that DNA evidence basedon calculations using the product rule was erroneously admitted in light of the holding inWatson. Though acknowledging the existence of the holding in Watson, the court in Millerfound that the controversy over the product rule was dissipating with the evolution of the science. The court further pointed out that "[t]he most recent courts to consider the use of the product rulehave concluded that it is a generally accepted statistical method for estimating the frequency of aDNA match." Miller, 173 Ill. 2d at 190. Thus, the court in Miller held that the trial courtproperly relied on the evolution of the science rather than the decision in Watson in permittingthe expert to testify on the DNA analysis.

After Miller, the supreme court decided Hickey, in which it reaffirmed its views withrespect to the scientific acceptance of the product rule as a method of calculating the statisticalsignificance of a match, stating that "[N]othing has occurred in the short time since our decisionin Miller was issued which would case doubt upon the results reached in that case. To thecontrary, recent developments in the scientific community indicate continued support for the useof RFLP profiling and for the use of the product rule." 178 Ill. 2d at 278. The court tookparticular notice of the NRC's 1996 report (an update to its 1992 report), in which it wasconcluded that "the state of the profiling technology and the methods for estimating frequenciesand related statistics have progressed to the point where the admissibility of properly collectedand analyzed DNA data should not be in doubt." National Research Council, The Evaluation ofForensic DNA Evidence, Committee of DNA Forensic Science: An Update 36 (NationalAcademy Press 1996) ("NRC II"). The court further noted that the update specifically concludesthat sufficient data have been gathered to establish that the interim ceiling principle is not neededand further recommends that, in general, the calculation of a profile frequency should be madewith the product rule. Hickey, 178 Ill. 2d at 278-79, citing NRC II at 5, 35.

Defendant insists that neither Miller nor Hickey explicitly overruled Watson, and thusWatson remained the law of the case for purposes of the trial court's actions. We find thisargument unpersuasive. In fact, this court has already specifically recognized that the Millercourt held that Watson is no longer controlling as to the use of the product rule, and that in lightof scientific developments, the use of the product rule is now accepted and proper. See People v.The Almighty Four Hundred, 287 Ill. App. 3d 123, 130 (1997). We agree, and thus hold that inlight of the change in the law exception to the law of the case doctrine (see People v. Daniels,332 Ill. App. 3d 198, 210 (2001)) the trial court in this case was not bound by the mandate ofWatson, and properly granted the State's motion to not hold a second Frye hearing.

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Conclusion

We hold that the trial court did not err in any of the respects urged by defendant, andaccordingly affirm the trial court's judgment which found defendant guilty of aggravated criminalsexual assault and aggravated kidnapping. We further hold that no error occurred in the trialcourt's adjudication that defendant is an habitual criminal under the relevant statute, and thusdefendant was properly sentenced to life in prison.

Affirmed.

GORDON, P.J., and McNULTY, J., concur.

1. Three years was the statute of limitations on a charge of sexual assault.

2. Dr. Deadman was qualified as an expert forensic chemist able to make DNAcomparisons at the Frye hearing that took place in this case in 1991. The parties stipulated to thetestimony of that hearing, and the trial court took judicial notice of it.

3. Dr. Geisser also testified at the Frye hearing, where he was qualified as an expert inbiostatistics.

4. At the time, the statute of limitations on a charge of sexual assault was three years.

5. Just after entering the rule to show cause, the chief judge authorized a search warrantfor the same evidence. There was no return on that warrant, which was never executed. TheState conceded, before the trial court, that the samples were taken pursuant to the subpoena andnot the warrant, and the trial court agreed, as does this court.