No. 3--98--0998

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2001

The defendant, Derrick J. Wheeler, was convicted of firstdegree murder (720 ILCS 5/9--1(a)(1) (West 1996)) in the WillCounty circuit court. He claims that his convictions should bereversed because (1) he was not proven guilty beyond a reasonabledoubt, and (2) the court erroneously admitted evidence from"invisible blood" testing. We remand for a Frye hearing on the"invisible blood" testing procedure.

Before the defendant's trial, his attorney filed a motion inlimine seeking, inter alia, to bar the State from presentingevidence from a Leuco-Malachite Green (LMG) test the policeperformed on his car. LMG is a chemical mixture used to detectlatent blood on a surface. The defendant's attorney argued thatthe test results were highly prejudicial and lacked probativevalue. The judge reserved his ruling on the LMG portion of themotion.

The case proceeded to trial on September 9, 1998. TheState's first witness was Jacques Buckley, who testified that hewas a lifelong friend of Monte Love, the victim. Buckley said heand the defendant were "riding around" in the defendant's yellowcar in the early morning hours of June 18, 1997. They eventuallypicked up Love and drove to the defendant's house, where Buckleyand Love entered and bagged some "fake dope." They exited thehouse after about 15 minutes, and the defendant said, "Let's go." Karen Washington and another person were also outside the houseat that time. The three men left in the defendant's car withBuckley driving, Love in the front passenger seat, and thedefendant in the back seat.

According to Buckley, they drove around the neighborhood andeventually detoured from Patterson Road because a train wascrossing in front of them. Love then asked Buckley to stop thecar so he could get out and relieve himself. Buckley said hestopped under a noisy highway, and Love exited the car followedby the defendant. Buckley then heard two quick gunshots. Helooked back and saw Love lying on the ground and the defendantreturning to the car. He began pulling away, and the defendantentered through the front passenger door with a gun in his hand. Buckley asked what happened, and the defendant told him not toworry about it. The defendant placed the gun in a bag and put itunder the seat.

Buckley testified that he saw a white woman with a dog or acat as they left the scene. He said they drove to a store, wherehe used the bathroom and left in the car with another man namedLamaris George. The defendant was not with them at that time. Buckley said he told a man named Jermaine Holifield about theshooting the day after it happened. He acknowledged that he didnot speak to the police about the shooting until a detectivecontacted him approximately 10 weeks later while he was in jailfor a pending drug case. He testified that the defendant hadthreatened to "do" him also if he told anyone about the shooting.

In addition to this testimony, Buckley acknowledged that hehad been convicted of three felonies and a misdemeanor, allinvolving acts of dishonesty. He also acknowledged that he wasinvolved in a pending case for narcotics possession. In thatcase, in exchange for his testimony against the defendant, theState agreed that he would receive 30 months of probation, 180days in the county jail, and drug counseling. The State alsogranted him immunity from any murder charges stemming from Love'sdeath.

The parties stipulated that Karen Washington would offer thefollowing testimony if called as a witness. She was at thedefendant's house between 6:30 and 7 a.m. on the morning of theshooting. She observed Buckley, Love, and the defendant arrivein a yellow Oldsmobile Delta 88. The top of the Oldsmobile wasthe same color as the bottom, and she believed it belonged to thedefendant. The three men left in the Oldsmobile around 7 a.m.,after the defendant mentioned having something important to do. Buckley was driving, the defendant was in the front passengerseat, and Love was in the back seat. Washington heard that Lovewas dead about 30 to 45 minutes later.

Reginald Pinnick, one of Love's friends, testified that hesaw Love riding in the front passenger seat of a yellow cararound 7 a.m. on the day of the shooting. He tried to stop thevehicle to speak with Love, but Love raised one finger as if toindicate he would be right back. Pinnick saw two other personsin the car whom he could not identify. He said he could notrecall whether the car had a vinyl top and did not remembertelling police detectives it had a vinyl top. He also said thecar resembled a yellow Oldsmobile Delta 88 depicted in People'sExhibit No. 6 (a photograph), but he could not definitelyidentify it as the Delta 88.

The parties next stipulated that a train crossed PattersonRoad at approximately 7:35 a.m. on the morning of the shooting.

Camille Sharp testified that Interstate 80 is elevated "overthe top of [her] back yard." She said on the morning of theshooting, she went outside to get her dog and saw a man urinatingbeside a car that was facing her house. After unchaining herdog, she looked up and saw a second man, with a gun, standingbehind the man who was urinating. The second man initially madean unsuccessful attempt to fire the gun. However, he madeanother attempt and shot the first man in the back of the head. Sharp saw "a big cloud of blood" followed by the victim fallingbackward to the ground. She said the shooter's arms wereoutstretched in opposite directions, one reaching for the cardoor and the other pointing the gun. She further said thedistance between the victim and the car was a "little over" thelength of the shooter's outstretched arms.

According to Sharp, the shooter fired two additional shotsat the victim while attempting to enter the car. He then enteredthe car and it pulled away. Sharp believed there were twopersons in the car at that time. She described the car as alarge, white, four-door vehicle with chrome bumpers and a vinyltop that was a shade darker than the body.

Sharp called 911 after witnessing the shooting. Shetestified that she observed the shooter's complexion anddescribed his clothing to a police detective. When asked aboutthe information in the detective's report, she remembered tellinghim the shooter wore a sports jersey with black and bluelettering on it and had a black "do-rag" on his head. However,she said she did not recall telling him the shooter's complexionresembled a dark Mexican or a light black man. Instead, shetestified that she believed the shooter's skin was darker thanthe victim's skin.

Sharp viewed three or four cars at the police station andidentified the one that most resembled the car used in theshooting. However, she later called the police and directed themto another car she had seen on her own. She testified that shedirected them to the other car to show them what the car used inthe shooting looked like.

Police officer James Kren testified that he arrived at thescene at approximately 7:30 a.m. He found a dead black malelying face-up under Interstate 80 with blood covering the rightside of his face.

Louis Bolognani, a police evidence technician, testifiedthat he photographed the murder scene and collected evidence. Upon arriving at the scene, he found the victim lying face upwith the zipper of his trousers down. Bolognani preserved castsof tire impressions made by a vehicle that apparently left thearea at "an excessive rate of speed." He discovered two smallplastic bags containing a white powdery substance, one on thevictim's chest and another by his left hand. Bolognani also tooktire impressions and lifted latent fingerprints from threevehicles in police custody, including the yellow Oldsmobiledepicted in People's Exhibit No. 6. He did not testify regardingany connection between the defendant and the impressions or thefingerprints. He said he found no evidence inside the yellowOldsmobile, describing its interior as "exceptionally clean." Healso said the Oldsmobile did not have a vinyl top.

The parties stipulated that neither of the plastic bagsrecovered from the victim contained a controlled substance andthat the victim's death resulted from gunshot wounds to the head.

The State's next witness was William Smith, an evidencetechnician who performed an LMG test on the defendant's car. Before Smith took the stand, the defendant's attorney renewed hisargument that the LMG evidence should be barred because it washighly prejudicial and lacked probative value. He furtherstated:

"I believe the State if they wanted to presentevidence of this, I think there is a Frye test. Wetalked about this earlier, as to whether this is a testthat's generally accepted by the scientific communityfor the purposes of which it's being used to show thisis an indicator of blood or not."

The judge subsequently denied the portion of the defendant'smotion in limine relating to the LMG evidence.

Smith then took the stand and testified that he had been apolice evidence technician for approximately nine years. He hadreceived evidence training at Northwestern University, includinginstruction on the use of LMG as a blood-enhancement technique. He explained that the LMG test involves spraying a chemicalmixture on a surface and watching for a color change to "darkblue green." Such a change, he stated, "will give you apresumption to say that this is blood." He acknowledged thatpossibly as many as 50 other substances, including fresh potatojuice and certain metals, would cause the same reaction. Whendiscussing that fact, he stated: "It's presumed to be blood. Itcould be another substance, but it is presumed to be blood."

Smith then testified that he performed an LMG test on thedefendant's yellow Oldsmobile Delta 88 during the murderinvestigation. He did not see any blood on the car beforehand. He said he sprayed the inside of the rear passenger-side door andobserved "a couple little dots" where the LMG exhibited the darkblue color change.

Detective Steve Bajt was the State's final witness. Hetestified that he tried to speak with Lamarus George to verifyBuckley's claim that they were together after the shooting. However, George's parents would not let Bajt see him, statingthat he could not communicate because of a medical condition. Bajt never spoke with Jermaine Holifield.

Bajt testified that he arrested the defendant and took theOldsmobile Delta 88 into custody. The defendant waived hisMiranda rights and denied knowing Love or being involved with theshooting. However, after looking at a photograph, he said herecognized Love as "Demonstration Man" and acknowledged givinghim a ride to the projects on the day of the shooting.

According to Bajt, the defendant gave a statement containingthe following facts: Love came to the defendant's house on themorning of the shooting wanting to buy some "weed." Buckley wasoutside at the time with some friends, including KarenWashington. The defendant advised that he did not have any"weed," and Love asked for a ride to the projects. Buckley andthe defendant took him to the projects in the defendant's car. Buckley was driving, the defendant was in the front passengerseat, and Love was in the back seat. The defendant did not drivebecause his license was suspended. After dropping Love off atthe projects, Buckley and the defendant drove to see a girlfriendbut discovered that she was not home. The defendant's car wouldnot start when they tried to leave, so Buckley got a ride withanother person to pick up a battery.

Bajt testified that, while going over the statement a secondtime, the defendant said he went with Buckley to pick up thebattery and they both returned and fixed the car. He neveridentified the person who took them to get the battery. Bajtalso testified that the Oldsmobile Delta 88 he took into custodydid not have a vinyl roof.

The State then rested, and the defendant recalled Bajt totestify. Bajt said he interviewed Buckley in jail and advisedthat his name had surfaced during the investigation of Love'smurder. Buckley never mentioned seeing a white woman with a dog,telling Jermaine Holifield about the shooting, or beingthreatened by the defendant. Bajt also interviewed ReginaldPinnick, who described the car he saw as a beige or yellow four-door vehicle with a vinyl top. Additionally, Bajt interviewedCamille Sharp at the scene of the shooting and at the policestation. Sharp described the shooter as a male in his mid-twenties, either a dark Mexican or a light-complected black man,wearing a black sport jersey with blue lettering and a black "do-rag" on his head.

Three stipulations were presented after Bajt's testimony. The first stipulation indicated that the tire impressions at thescene of the shooting did not match the tires on the defendant'scar or any other cars in police custody. The second stipulationindicated that during his grand jury testimony, Buckley nevertestified that he (1) saw a white woman with a dog, (2) toldJermaine Holifield about the shooting, or (3) was threatened bythe defendant. The third stipulation indicated that if Buckleywas recalled to testify, he would acknowledge being addicted todrugs dating back to the day of the shooting.

After hearing the evidence, the jury found the defendantguilty of first degree murder. He filed a motion for a new trialclaiming, inter alia, that the judge erred in admitting Smith'stestimony about the LMG test without conducting a Frye hearing. The motion was denied, and the defendant was sentenced to 48years in the Department of Corrections. He now appeals.

The defendant first claims that the State's evidence wasinsufficient to prove him guilty beyond a reasonable doubt.

It is well established that a jury's role is to determinethe credibility of the witnesses, weigh their testimony, and drawinferences from the evidence. People v. Jimerson, 127 Ill. 2d12, 535 N.E.2d 889 (1989). An appellate court's role, whenaddressing a challenge to the sufficiency of the State'sevidence, is to determine whether any rational trier of factcould have found the elements of the crime proven beyond areasonable doubt. People v. Collins, 106 Ill. 2d 237, 478 N.E.2d267 (1985). In making this determination, the court considersthe evidence in a light most favorable to the State. Collins,106 Ill. 2d 237, 478 N.E.2d 267. "Where evidence is conflicting,it is the prerogative of the jury to ascertain the truth; areviewing court may not substitute a different conclusion onquestions regarding the credibility of witnesses." People v.Gill, 169 Ill. App. 3d 1049, 1053, 523 N.E.2d 1239, 1242 (1988). A jury verdict should not be disturbed unless the evidence is soimprobable, unsatisfactory, or inconclusive that no rationaltrier of fact could have found the defendant guilty beyond areasonable doubt. People v. Jarvis, 158 Ill. App. 3d 415, 511N.E.2d 813 (1987).

In light of these principles, we conclude that the Statepresented sufficient evidence to sustain the defendant'sconviction for first degree murder. Jacques Buckley testifiedthat he witnessed the murder and that the defendant was theshooter. His testimony was corroborated in several respects byother witnesses. For example, Karen Washington confirmed thatthe defendant left his house on the morning of the murder withBuckley and the victim. She also confirmed that they left in thedefendant's car and that Buckley was driving. Reginald Pinnicktestified that he saw the victim riding in the front passengerseat of a yellow car with two other individuals that morning. The parties stipulated that a train crossed Patterson Road at thetime Buckley claimed to have been detoured by one. OfficerBolognani testified that the victim was found dead with histrousers unzipped, corroborating Buckley's statement that thevictim was shot after exiting the car to relieve himself.

Additionally, Camille Sharp witnessed the shooting andtestified that she saw two men standing beside a car near anelevated portion of Interstate 80. She said one of the men wasurinating while another man shot him in the back of the head. She said the shooter then entered the car and it pulled away. She believed two persons were in the car at that time. Thesedetails corroborate Buckley's description of the shooting.

We acknowledge the defendant's argument that Buckley was notcredible. However, Buckley's credibility was a matter for thejury to determine. After viewing the evidence in a light mostfavorable to the State, we cannot say that no rational trier offact could have found the defendant guilty beyond a reasonabledoubt.

The defendant next claims that Smith's testimony about theLMG test should not have been admitted without a Frye hearing,and that the testimony was irrelevant.

The State contends that the defendant has waived his Fryeclaim by failing to assert it in the trial court. However, therecord shows that the defendant's attorney mentioned the Fryetest while arguing his motion in limine. The attorney alsoalluded to previous discussions before the court regardingapplication of the test. Furthermore, the defendant's motion fora new trial contained a claim that the judge should haveconducted a Frye hearing. We decline to apply the waiverdoctrine under such circumstances. See Harris v. Cropmate Co.,302 Ill. App. 3d 364, 706 N.E.2d 55 (1999) (declining to applythe waiver doctrine even though the defendant failed to request aFrye hearing in the trial court).

When determining whether an expert witness can give anopinion based on a scientific theory, Illinois courts follow thetest set forth in Frye v. United States, 293 F. 1013 (D.C. Cir.1923). The Frye court explained the test as follows:

"Just when a scientific principle or discovery crossesthe line between the experimental and demonstrablestages is difficult to define. Somewhere in thistwilight zone the evidential force of the principlemust be recognized, and while courts will go a long wayin admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thingfrom which the deduction is made must be sufficientlyestablished to have gained general acceptance in theparticular field in which it belongs." (Emphasisadded.) Frye, 293 F. at 1014.

Thus, expert testimony based on a scientific theory is notadmissible unless the theory has gained general acceptance in theexpert's field. People v. Ferguson, 172 Ill. App. 3d 1, 526N.E.2d 525 (1988). The determination of whether a theory hasgained such acceptance is made at a separate evidentiary hearing. See Harris, 302 Ill. App. 3d 364, 706 N.E.2d 55.

These principles apply to determining the admissibility ofSmith's testimony. The prosecutor argued otherwise in the trialcourt, asserting that Smith would not testify as a scientificexpert because he "would not *** give an opinion as to whether ornot the substance which was sprayed was actually blood." Rather,according to the prosecutor, Smith would simply "testify to thetest that he performed and what the results were."

These statements understate what Smith did when he took thestand. He described the LMG test and the reaction he observed onthe door of the defendant's car. However, he further told thejurors that a reaction with LMG raises a presumption that thedetected substance is blood, even though possibly as many as 50other substances could cause the same reaction. He gave thistestimony against the backdrop of his training at NorthwesternUniversity and his years of experience as an evidence technician. His testimony amounted to an opinion that the reaction on the cardoor was a basis for presuming the presence of blood over all theother possible substances. Such an opinion falls within therealm of expert testimony.

We are convinced that a remand for a Frye hearing iswarranted. The degree to which LMG testing is accepted in thescientific community is unclear. No reported cases in Illinoisaddress the admissibility of LMG evidence. Additionally, thetrial judge's comments on the record suggest that he wasunfamiliar with LMG. The State cites People v. Henne, 165 Ill.App. 3d 315, 518 N.E.2d 1276 (1988), and People v. Hendricks, 145Ill. App. 3d 71, 495 N.E.2d 85 (1986), for the proposition thatLuminol testing, which is similar to LMG testing, involves agenerally accepted procedure. We note that Hendricks has beenreversed (People v. Hendricks, 137 Ill. 2d 31, 560 N.E.2d 611(1990)). In any event, neither case is helpful because theymerely mention the use of Luminol without addressing theadmissibility of the test results.

We realize that the LMG testing procedure is taught atNorthwestern University. However, we are not willing to assumethat the Frye standard is satisfied based solely on that fact. Furthermore, the issue in the instant case involves more thanjust the testing procedure. In light of Smith's testimony, therelevant inquiry is whether LMG testing is generally accepted inthe scientific community as a means of raising a presumption(rather than just a possibility) that blood is present. Thatinquiry should be addressed at the Frye hearing on remand. Unless it is determined that Smith's testimony qualifies foradmission under the Frye standard, the defendant should receive anew trial, because we do not believe the resulting error would beharmless. See Ferguson, 172 Ill. App. 3d 1, 526 N.E.2d 525(noting that a retrial under such circumstances does not subjecta defendant to double jeopardy).

The defendant also claims that Smith's testimony should nothave been admitted because it was irrelevant. Since that claimwould remain if the testimony passed the Frye standard on remand,we will address it now. Evidence is relevant if it has anytendency to make a fact in consequence to the determination ofthe action more or less probable than it would be without theevidence. People v. Hope, 168 Ill. 2d 1, 658 N.E.2d 391 (1995).

The State presented evidence that the defendant exited therear passenger-side door of the Delta 88 and shot the victim nearthe car, causing a large cloud of blood. Accordingly, theexistence of blood on the door was a fact of consequence to thedetermination of the case. Smith's testimony made that fact moreprobable and thus qualifies as relevant. For these reasons, wecannot conclude that the judge abused his discretion in admittingSmith's testimony as relevant.

The cause is remanded to the circuit court for furtherproceedings consistent with this order. This court retainsjurisdiction of the appeal pending resolution of the Frye issuein the circuit court.

Remanded with directions.

SLATER and LYTTON, J.J., concurred.

SUPPLEMENTAL OPINION

JUSTICE HOMER delivered the supplemental opinion of the court:

Defendant Derrick J. Wheeler was convicted of first degreemurder (720 ILCS 5/9--1(a)(1) (West 1996)). He appealed,challenging the sufficiency of the State's evidence and theadmission of testimony of "invisible blood" testing. Aspreviously set forth, this court found the State's evidencesufficient to sustain defendant's conviction, but we retainedjurisdiction and remanded the cause to the trial court for ahearing to determine the degree to which Leuco-Malachite Green(LMG) testing is accepted in the scientific community.

After a hearing on January 15, 2002, the trial court ruledthat LMG evidence was properly admitted. We review Frye issuesunder an abuse of discretion standard. Donaldson v. CentralIllinois Public Service Company, 199 Ill. 2d 63, 767 N.E.2d 314(2002). Based on our careful review of the record, assupplemented by a transcript of the hearing and supplementalbriefs of the parties, we now reverse defendant's conviction andremand the cause for a new trial.

A detailed statement of the facts of the case is set forthabove. We will include only those facts here which are relevantto the LMG testing procedure.

Prior to trial, defendant filed a motion in limine to barthe State from presenting testimony by Officer William Smithrelating to LMG testing of the door of defendant's car. Defendant argued that the testimony was unduly prejudicial andthat the State had not established that the test was generallyaccepted in the scientific community as an indicator of blood. Upon the prosecutor's assurance that Smith would not testify asan expert witness, the trial court admitted the testimony.

Smith then testified that prior to spraying a solution ofLMG on the car door, he did not observe any spots or substancesresembling blood. The spray revealed a "couple" of spots thatgave a positive reaction by turning dark blue-green. Smithstated that LMG is a "presumptive test" for the presence of bloodand that a positive LMG reaction "will give you a presumption tosay that this is blood."

Because Smith's testimony amounted to an expert opinion,this court remanded the cause for a hearing pursuant to Frye v.United States, 293 F. 1013 (D.C. Cir. 1923). We noted that noreported cases in Illinois had addressed the admissibility of LMGevidence and that the issue in this case required more thansimply determining whether LMG was a testing procedure generallyaccepted in the scientific community. We directed the court todetermine specifically "whether LMG testing is generally acceptedin the scientific community as a means of raising a presumption(rather than just a possibility) that blood is present." Slipop. at 18.

At the hearing on remand, two forensic scientists testified,Dr. Robert Gaensslen for the State and Marc Scott Taylor for thedefense. Dr. Gaensslen testified that LMG testing is generallyaccepted in the scientific community as a "presumptive" or"preliminary" test that produces a positive reaction tosubstances containing a sufficient amount of peroxidase enzyme. He explained that approximately 50 different substances--including, for example, copper and blood--contain peroxidaseenzyme and give a positive reaction to LMG. On cross-examination, however, Gaensslen said that if a suspectedsubstance such as blood was not visible to the naked eye, apositive LMG test indicated a "possibility" of its presence, buta "confirmatory" test would have to be performed to determinewhether the substance was blood.

Defendant's expert, Taylor, agreed with Dr. Gaensslen that apositive LMG reaction on an invisible stain raised only apossibility, but not a presumption, that blood was present. Hesaid a stain was presumed to be blood when it was visible andlooked like blood and then produced a positive reaction to LMG.

The Frye hearing established that a positive LMG reactionindicates a broad range of possible substances present on thematerial tested, but it does not, without more, permit the testerto "presume" the presence of any particular substance within thecategory of matter containing peroxidase enzymes. The expertsagreed that if a suspected substance is not visible, LMG testingalone could only indicate the possible presence of blood. Inother words, although LMG is generally accepted in the scientificcommunity as a preliminary test for the presence of blood, it isnot an accepted method for presuming the presence of blood asSmith opined at trial.

Thus we conclude that, at least in the absence of visibleevidence of blood, LMG testing is not generally accepted in thescientific community as a means of raising a presumption (ratherthan just a possibility) that blood is present.

Our conclusion today is generally consistent with decisionsin sister jurisdictions where the use of "presumptive" tests hasbeen challenged. See, e.g., Brenk v. Arkansas, 311 Ark. 579, 847S.W.2d 1 (1993) (presumptive test improperly admitted in absenceof confirmatory test to determine whether substance causingreaction was blood); State v. Fukusaku, 85 Ha 462, 946 P.2d 32(1997) (presumptive testing properly excluded because, withoutconfirmatory tests, prejudicial effect of evidence was notoutweighed by its probative value); State v. Canaan, 265 Kan.835, 964 P.2d 681 (1998) (evidence of presumptive tests admittedwhere confirmatory testing established that substance causingreaction was blood); State v. Peterson, 242 Neb. 286, 494 N.W.2d551 (1993) (LMG evidence properly admitted where visible darkstains indicated presence of blood and confirmatory testsestablished that substance was blood); cf. Commonwealth v.Duguay, 430 Mass. 397, 720 N.E.2d 458 (1999) (evidence properlyadmitted where expert testified that presumptive ortho-tolidinetest used to detect blood was a screening test capable ofproducing false positives).

In sum, we hold that the testing procedures utilized in theinstant case did not give rise to a presumption as to thepresence of blood on the door of defendant's car. Therefore, theadmission of Smith's expert opinion to the contrary resulted inreversible error. Accordingly, we reverse defendant's convictionand remand the cause to the circuit court of Will County for anew trial.

Reversed and remanded.

LYTTON, P.J., and SLATER, J., concurred.