People v. King , 2018 IL App (2d) 151112 ( 2019 )

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People v. King, 2018 IL App (2d) 151112Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption SHADWICK R. KING, Defendant-Appellant.
District & No. Second District
Docket No. 2-15-1112
Filed August 21, 2018
Decision Under Appeal from the Circuit Court of Kane County, No. 14-CF-1229; the
Review Hon. James C. Hallock, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Gabriel A. Fuentes and Clifford W. Berlow, of Jenner & Block LLP,
Appeal of Chicago, for appellant.
Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick
Delfino, David J. Robinson, and Victoria E. Jozef, of State’s
Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Jorgensen and Schostok concurred in the judgment and
opinion.
OPINION
¶1 Defendant, Shadwick R. King, appeals his conviction of first degree murder (720 ILCS
5/9-1(a)(1) (West 2014)) and sentence of 30 years’ incarceration, following a jury trial in the
circuit court of Kane County. Because defendant was prejudiced by the improper introduction
of a former FBI profiler’s “crime-scene-analysis” testimony, we reverse and remand for a new
trial.
¶2 I. BACKGROUND
¶3 The common law record, trial transcripts, photographs, and videos in evidence show the
following. We will supplement the facts as necessary in the analysis section of the opinion.
¶4 A. The Body on the Railroad Tracks
¶5 On July 6, 2014, between 6:02 and 6:05 a.m., an eastbound Union Pacific freight train
passed through Geneva Station in Geneva, Illinois. Locomotive engineer Devin Satchell saw
no one on or near the railroad tracks. The tracks were surrounded by heavy brush, although
there were access points at breaks in the brush.
¶6 An eastbound Metra passenger train traveling on track 1 approached Geneva Station at
6:36 and left it at 6:37 a.m. The train was under the Route 25 overpass when student engineer
Alex Perez informed engineer Robert Soto Jr. of a “body, or something” on track 2. Perez
began blowing the train’s horn. Soto saw a woman lying awkwardly on the track. She had a
blank stare and was not moving.
¶7 At approximately 6:39 a.m., the train came to an emergency stop, and crew members Dan
Mongelli and Joel Cavender stepped out to investigate. Cavender observed that the woman’s
shirt was halfway up her back and that she did not move or breathe. Mongelli saw the woman’s
shirt lift, and he informed his dispatcher, “I believe this broad’s still breathing.” However,
when he got within a foot of the woman and squatted down to look at her, he saw that she was
not breathing. He determined that her shirt had lifted in the breeze. Mongelli noticed that her
neck was “laid” across the track “in a perfect manner” so that an oncoming train would strike
it. He also noticed a purple color around her mouth, brush (described by another witness as
dried leaves and a blade of grass) in her hair, a cell phone nearby, and “spotting” on her leg.
This “spotting” was later determined by paramedic Gary Grandgeorge and deputy coroner Lisa
Gilbert, who also responded to the scene, to be “lividity.” Mongelli realized at the scene that
the woman was deceased. Mongelli and Cavender waited for the police to arrive.
¶8 Geneva police sergeant George Carbray arrived on the scene at approximately 6:55 a.m.
According to Carbray, the body was lying on its left side, facing west. The head and neck were
positioned over the northern rail. A pink iPhone was placed against a couple of railroad spikes
on the opposite side of the rail from the body. It would later be determined that there were no
fingerprints on the phone.
¶9 The body was clad in a gray top, black running shorts with no spandex liner, and black and
pink running shoes. The shorts were loose, and there were no underpants beneath them. A
dried leaf was on the lower abdomen, just above the pubic area. A Maidenform underwire bra
was pulled up, half exposing the breasts.
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¶ 10 Carbray found no pulse. He believed that the woman had been dead for some time, but he
wanted a medical opinion, so he called for paramedics. They attached a heart monitor to the
body but found no heartbeat. Grandgeorge testified that the monitor detected “pulseless
electrical activity,” which can carry on “for some time” after a person dies. The paramedics did
not make resuscitation efforts because it appeared that the woman had been deceased for “quite
some time.” EMT Michael Antenore noted that the woman’s skin was a “cyanotic purple”
color and that the pupils were “fixed and dilated.” Antenore also noted that the paramedics had
mud on their shoes, due to an overnight rain, but that the woman’s running shoes were clean.
¶ 11 The woman was later identified as 32-year-old Army reservist Kathleen King, defendant’s
wife. Their home was located 1200 to 1300 feet from where she was found. People who were
in the general area of the railroad tracks between 6 and 6:30 a.m. on July 6 did not see anyone
running or see any cars in nearby Esping Park. Esping Park was just north of the tracks and had
walking paths providing access to the tracks. Defendant’s neighbors did not see him or his
SUV out between 6 and 6:30 a.m.
¶ 12 Defendant’s and Kathleen’s 10-year-old son, Brandon, testified that Kathleen ran in
Esping Park. According to Brandon, when running, Kathleen customarily wore an armband
into which she tucked her iPhone. She also wore either glasses or contact lenses and earbuds.
When her body was found, she was not wearing contacts or glasses. Her contacts, armband,
and earbuds were found in her home during a later search.
¶ 13 B. The Fourth of July Party
¶ 14 At approximately 6 p.m. on July 5, 2014, Kathleen, defendant, and their three boys, then
ages nine, seven, and five, arrived at the home of her father, Kurt Kuester, in Elk Grove Village
for a Fourth of July celebration. During the evening, defendant drank three or four beers, and
Kathleen drank a bottle and a half of wine. According to Kathleen’s younger sister Kristine,
Kathleen demonstrated a maneuver to render someone unconscious that she had learned in the
Army. At about 10:30 or 10:45 p.m., Kathleen and defendant left the party. The boys stayed
overnight with Kurt. According to Kristine, Kathleen did not have any injuries or bruises that
night.
¶ 15 The next morning, Kristine learned from the Geneva police that Kathleen had died. At
approximately 10:40 a.m. on July 6, Kristine telephoned Kurt and told him that Kathleen was
dead. In a second phone call that morning, Kristine told Kurt not to allow defendant to have the
boys.
¶ 16 Kurt testified that he frantically started screaming, “What are you talking about?” when
Kristine broke the news to him of Kathleen’s death. At about that time, defendant was
approaching the front door, which Kurt thought was unusual, because defendant “never”
picked up the children. Kurt asked defendant, “Where is Kathleen?” Defendant replied, “We
were fighting and she went running at 6:30 to clear her head.” Kurt told defendant: “Kathleen
is dead, Shad.” Defendant bent over and said: “I didn’t do anything. I didn’t do anything.”
According to Kurt, defendant did not ask what had happened to Kathleen or where she was.
¶ 17 C. Police Interviews of Defendant
¶ 18 Elk Grove Village police officers Angela Garza and Eric Perkins responded to a call at
Kurt’s residence on July 6 at 11:44 a.m. Defendant told Garza that Kurt would not allow him to
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take his children because Kathleen was deceased. Defendant stated that he and Kathleen had an
argument over her seeing a man whom she met in the military and that defendant told her to
choose between the other man and him. Then, according to defendant, Kathleen went running
by the river at 6:30 a.m. Defendant stated that he came to Kurt’s home to pick up the children,
but that no one was home, so he drove to Kathleen’s grandmother’s house in Chicago. He
arrived between 9 and 9:30 a.m., but no one was there, so he drove back to Kurt’s house.
Defendant asked if Kathleen was okay. Garza and Perkins transported defendant to the Geneva
police station. Garza testified that defendant was so upset and anxious that it was not safe for
him to drive himself. According to Garza, 20 minutes into the ride, defendant asked how
Kathleen had died, but the officers did not have those details.
¶ 19 At 1 p.m., Geneva police detectives Robert Pech and Brad Jerdee interviewed defendant.
The video of the interview is in evidence. Defendant explained to the detectives that Kathleen
was away in basic training from February 7 to June 14, 2014. Defendant took a leave of
absence from his insurance job to take care of the children while Kathleen pursued her Army
career. According to defendant, when Kathleen returned home, he learned of her relationship
with a man he called “Keno,” whom she met in the military. Defendant stated that he
mentioned divorce but, he said, Kathleen refused to consider it. Defendant also stated that he
agreed that Kathleen could move out of state with the children to be with Keno as long as she
agreed that defendant could have the boys during the summer. Defendant further stated that he
told Tim Casey, Kristine’s fiancé, that he might miss their wedding because of marital
problems.
¶ 20 Casey (Kristine’s husband at the time of trial) confirmed what defendant said that he had
told him. Casey also testified that he had helped cover up Kathleen’s affair by lying to
defendant about Kathleen’s whereabouts on one occasion.
¶ 21 Defendant told Detectives Pech and Jerdee that he and Kathleen went to a bar in Geneva
after they left Kurt’s party the night of July 5. According to the bartender, she served defendant
five bottles of Miller Lite and Kathleen four glasses of wine. A man named Chad joined the
Kings and bought them each a shot. Chad testified that he did not see any bruises on Kathleen’s
face.
¶ 22 Defendant told the detectives that he and Kathleen left the bar at approximately 1:45 a.m.
and got home at about 2 a.m. Defendant was brushing his teeth while Kathleen was texting
someone on her iPhone. When Kathleen put the phone down where defendant would be sure to
see the message she had written, he saw that she was sending a romantic text to Keno.
¶ 23 The record shows that the man’s name was Billy Keogh. The record also shows that he and
Kathleen had exchanged over 3000 text messages. In one message, Kathleen asked Keogh to
marry her. Kristine was aware of her sister’s relationship with Keogh and had helped Kathleen
keep it from defendant.
¶ 24 Defendant told the detectives that, when he saw Kathleen’s text to Keogh, he picked up her
phone and texted Keogh to leave her alone. Defendant stated that he also texted Keogh that he
was going to bed with Kathleen.
¶ 25 The record shows that 11 texts about defendant and Kathleen having sex were sent to
Keogh from Kathleen’s phone between 4:18 and 4:57 a.m. The record also shows that, after
defendant took Kathleen’s phone from her that morning, she used another device to
communicate with Keogh.
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¶ 26 According to defendant’s statement to the detectives, he and Kathleen stayed up until 5
a.m. on July 6 talking about her desire to attend officers’ school. Defendant denied that he and
Kathleen argued about Keogh. Throughout the interview, defendant expressed that he accepted
that his wife was having an affair. Defendant stated that he went to bed and slept for about an
hour and that Kathleen was also in the bed. According to defendant, Kathleen went running at
about 6:30 a.m. Defendant said that she usually ran by the river. Defendant stated that Kathleen
was wearing black and pink running shoes but that he could not remember what else she was
wearing.
¶ 27 At times during the interview, defendant was tearful. He ventured that Kathleen must have
been hit by a car. One of the detectives told him that Kathleen’s death was not accidental.
Defendant repeatedly stated, sometimes indignantly, that he did not, and could not, have
harmed her.
¶ 28 According to defendant, after Kathleen went running, he left the house to get donuts, as
was his Sunday habit. At 9:30 a.m., he called and texted Kathleen to find out Kurt’s phone
number so that he could pick up the boys. Defendant stated that he left the house at about 9:30
a.m., waved to the neighbors, and went to Kurt’s house. No one was home, so he drove to
Kathleen’s grandmother’s home in Chicago. No one was there, so he drove back to Kurt’s
home.
¶ 29 One of the detectives asked defendant how he got a “fat” lip. Defendant rubbed the right
side of his bottom lip but denied that his lip was “fat.” At trial, Pech testified that defendant’s
right bottom lip was slightly swollen.
¶ 30 The detectives took defendant home, where he gave them permission to search and
photograph his house. Pech described a messy house, with leaf fragments on the kitchen floor.
Police again searched defendant’s home on July 8, 2014, pursuant to a search warrant. Among
the items collected was dried vegetation matter throughout the house and on a still-wet
comforter that was in the washing machine. At trial, the State did not produce evidence
forensically linking the vegetation found in the house and the vegetation that was found on
Kathleen’s body. During the search, police also found earbuds and an armband into which a
phone could be inserted. Police also noted the presence of assorted sports bras.
¶ 31 On July 8, 2014, Pech and Jerdee conducted a second videotaped interview with defendant,
this time after Miranda warnings. Pech informed defendant that Kathleen died of asphyxiation.
Throughout the interview, the detectives presented defendant with various scenarios in which
he accidentally killed Kathleen. Defendant repeatedly denied doing anything, or even being
capable of harming Kathleen. Defendant denied knowing what happened to her. When Pech
falsely informed defendant that his fingerprints were found on Kathleen’s neck, defendant
denied knowing how they got there. He suggested that he might have touched her.
¶ 32 D. The Charge and Pretrial Motions
¶ 33 On July 11, 2014, the Kane County state’s attorney charged defendant by information with
two counts of first degree murder related to Kathleen’s death. Following a preliminary hearing
and a finding of probable cause, the case was assigned to Judge James C. Hallock. On
September 15, 2014, the information was superseded by a two-count indictment for first
degree murder.
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¶ 34 On July 14, 2014, the State moved pursuant to a federal statute (18 U.S.C. § 2703(d)
(2012)) for an order for the disclosure of registration records pertaining to defendant’s and
Kathleen’s cell phones for July 5 and 6, 2014. Defendant made an oral motion, which the court
denied, to declare the statute unconstitutional on the ground that the fourth amendment
requires a warrant rather than a court order. On July 17, 2014, the court granted the State’s
motion to obtain the cell phone records.
¶ 35 On July 18, 2014, defendant moved for substitution of judge as of right (725 ILCS
5/114-5(a) (West 2014)). In a written order dated September 3, 2014, the court, identified only
as “Judge 42,” denied the motion on the ground that Judge Hallock had made a substantive
ruling in denying defendant’s motion to declare the federal statute unconstitutional, making the
motion for substitution of judge untimely. The matter then remained in Judge Hallock’s
courtroom.
¶ 36 On January 15, 2015, the State filed its motion in limine No. 1, seeking leave to call Mark
Safarik as an expert witness in crime scene analysis. The motion stated that Safarik was a
“crime scene and behavioral analyst” for a private company known as Forensic Behavioral
Services. The motion further stated that Safarik had 23 years’ experience with the FBI,
including as a supervisor with the Behavioral Analysis Unit (BAU). Safarik had been, in the
vernacular, an FBI profiler. The substance of Safarik’s proposed testimony was contained in a
written report that he authored, which apparently was submitted separately to the trial court but
is not in the record.
¶ 37 The record shows that Safarik worked as a police officer, handling violent crimes for seven
years before joining the FBI. While in the FBI, Safarik attended training courses in various
disciplines, including forensic pathology, death investigation, and criminal behavior.
¶ 38 The court granted the motion in limine over defendant’s objection. In ruling that Safarik’s
testimony would be admissible if Safarik were qualified as an expert at trial, the court noted
that Safarik’s opinions would have to be rendered “pursuant to his qualifications” and that he
would not be permitted to identify “the defendant as the killer by direct testimony.” Nor, the
court ruled, would Safarik be allowed to give profiling testimony. The court found that
Safarik’s “specialized knowledge” was “reliable” and “relevant” and that the general subject
matter of his testimony would assist the jury to understand the evidence and to determine the
facts. Specifically, the court found that the positioning of Kathleen’s body on the railroad
tracks was “a matter beyond the common experience of most jurors and is [a] subject of
difficult comprehension.”
¶ 39 E. The Trial
¶ 40 The jury trial commenced on March 2, 2015. In addition to the evidence detailed above, the
following testimony was presented.
¶ 41 1. Dr. Mitra Kalelkar
¶ 42 The State called forensic pathologist Dr. Mitra Kalelkar. Dr. Kalelkar performed an
autopsy on Kathleen on July 7, 2014. Dr. Kalelkar noted the clothing on the body, as described
above. Dr. Kalelkar also noted that the heel of one sock was twisted around the ankle and that
one of the bra straps was twisted. Dr. Kalelkar testified to the presence of antemortem (before
death), postmortem (after death), and perimortem (at the time of death) abrasions and bruises,
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some of which were inconsistent with Kathleen having fallen or collapsed on the train tracks.
Specifically, she testified that an antemortem bruise under the chin was consistent with
someone’s hands having been around Kathleen’s neck or Kathleen having tried to pry
someone’s hands off her neck. Dr. Kalelkar opined that an antemortem bruise on the upper left
arm was consistent with someone grabbing her. Dr. Kalelkar noted a red mark on the neck that
did not contribute to Kathleen’s death and a trail of saliva mixed with stomach contents on the
cheek. According to Dr. Kalelkar, the stomach contained a minimal amount of brown fluid,
and a toxicology report showed the presence of caffeine. At the time of the autopsy, Kathleen’s
blood alcohol concentration was 0.15.
¶ 43 Dr. Kalelkar filled in her autopsy protocol with “asphyxiation” as the cause of death. In her
trial testimony, she expanded on that to include manual strangulation. She testified that she
found petechial hemorrhages in the eyes and epiglottis mucosa1 and that she also found focal
hemorrhages at the base of the tongue. Those findings, she testified, indicate strangulation.
¶ 44 2. Mark Safarik
¶ 45 Safarik, a former police officer and FBI profiler with no medical training, testified, over
objection, that the lividity on Kathleen’s body was inconsistent with her having died on the
train tracks. Over objection, Safarik testified to his opinion that the cause of death was manual
strangulation. He enumerated possible causes of asphyxiation, reiterated the cause of death as
listed by Dr. Kalelkar, and then eliminated all but manual strangulation as fitting the facts.
Safarik opined, over objection, that the death scene on the tracks was staged, that Kathleen was
killed in her residence, and that someone close to her, not a stranger, staged the scene. Safarik’s
testimony will be examined in more detail in the analysis section of the opinion.
¶ 46 3. Dr. Larry William Blum
¶ 47 Following the denial of his motion for a directed verdict, defendant presented his case. He
called Dr. Blum, a forensic pathologist, who testified that Kathleen died of a cardiac event
brought on by stress, alcohol intoxication,2 lack of sleep, and caffeine consumption. Dr. Blum
opined that Kathleen was running on the railroad tracks, became unwell, sat down on the rail,
and expired. According to Dr. Blum, her bruises and lividity were consistent with that
scenario. Dr. Blum acknowledged Dr. Kalelkar’s findings of petechial hemorrhages in the eyes
and focal hemorrhages at the base of the tongue, but he opined that those findings, standing
alone, did not support a conclusion that Kathleen was manually strangled. Dr. Blum also
testified that Dr. Kalelkar’s autopsy report was incomplete because “asphyxiation” as a cause
of death was nonspecific.
¶ 48 Defendant’s testimony essentially mirrored the statements that he gave to the police.
¶ 49 In rebuttal, Dr. Kalelkar testified that her autopsy findings led her to conclude that
Kathleen died of asphyxiation due to pressure applied to her neck. She testified that Dr. Blum’s
diagnosis of a cardiac event ignored evidence of strangulation. Kristine testified in rebuttal that
her family’s medical history could not account for Kathleen’s premature demise.
1
The epiglottis is cartilage that projects upward behind the tongue. Webster’s Third New
International Dictionary 763 (1993).
2
Dr. Blum testified that Kathleen’s blood alcohol concentration was 0.26 at its peak.
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¶ 50 During the prosecution’s rebuttal closing argument, the prosecutor argued that it was
“okay” for the jurors to have questions about the evidence and “still convict the defendant.”
¶ 51 The jury found defendant guilty of first degree murder, and, after denying his posttrial
motion, the court sentenced defendant to 30 years’ incarceration. This timely appeal followed.
¶ 52 II. ANALYSIS
¶ 53 Defendant raises six arguments: (1) the court erred in denying his motion for substitution
of judge, (2) the court erred in admitting Safarik’s testimony, (3) the court erred in permitting
Kathleen’s family to dwell on their suffering at her loss, (4) the prosecution improperly
defined reasonable doubt in its closing argument, (5) defendant was not proved guilty beyond a
reasonable doubt, and (6) the cumulative effect of the trial errors requires reversal.
¶ 54 A. The Motion for Substitution of Judge
¶ 55 The day after the court granted the State’s motion for disclosure of defendant’s and
Kathleen’s cellular telephone records, defendant filed a motion for substitution of judge as of
right, pursuant to section 114-5 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/114-5 (2014)). A defendant is entitled to an automatic substitution of his or her trial judge if
he or she meets the following requirements: (1) the motion is made within 10 days after the
case is assigned to the judge, (2) the motion names only one judge, unless the defendant is
charged with a Class X felony, in which case he or she may name two judges, (3) the motion is
in writing, and (4) the motion alleges that the judge is so prejudiced against the defendant that
he or she cannot receive a fair trial. People v. Tate, 2016 IL App (1st) 140598, ¶ 13. Section
114-5 also provides for naming two judges where the offense charged may be punished by
death or life imprisonment. 725 ILCS 5/114-5(a) (West 2014). Additionally, the motion must
be made before the judge makes a substantive ruling. Tate, 2016 IL App (1st) 140598, ¶ 13.
Where a motion for substitution of judge is improperly denied, all of the court’s actions
subsequent thereto are void. People v. Klein, 2015 IL App (3d) 130052, ¶ 79. We review
de novo a ruling on a motion for substitution of judge as of right. In re D.M., 395 Ill. App. 3d
972, 977 (2009).
¶ 56 Here, the question is whether Judge Hallock made a substantive ruling when he (1) denied
defendant’s motion to declare the federal statute granting access to cellular records
unconstitutional and (2) granted the State’s motion for access to those records. Defendant
argues that Judge Hallock ruled merely on a discovery matter that was not substantive because
it was collateral to the merits of the case. A ruling that does not go to the merits or relate to any
issue of the crimes charged is not a substantive ruling. See People v. Ehrler, 114 Ill. App. 2d
171, 178-79 (1969).
¶ 57 The federal statute on required disclosure of customer communications or records provides
that a court order for disclosure of electronic communications shall issue “only if” the
governmental entity seeking such disclosure offers “specific and articulable facts” showing
that there are “reasonable grounds” to believe that the contents of the records sought are
“relevant and material” to an ongoing criminal investigation. 18 U.S.C. § 2703(d) (2012). In its
motion, the State alleged the following facts to show “reasonable grounds”: (1) Kathleen’s cell
phone was found near her body, (2) Kathleen was not murdered where her body was found,
(3) defendant had been in possession of Kathleen’s cell phone, (4) cadaver dogs alerted on the
backseat of defendant’s car, and (5) defendant at all times had his own cell phone with him.
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The State argued that those facts supported its contention that the cell phone records were
necessary to pinpoint the locations of defendant and Kathleen during the relevant time periods.
¶ 58 In considering whether the State presented “specific and articulable” facts supporting its
request for the records, Judge Hallock necessarily considered aspects of the merits of the case.
The State’s motion was not a routine motion for “court-ordered discovery,” pursuant to Illinois
Supreme Court Rule 412 (eff. Mar. 1, 2001), as defendant maintains, but was brought pursuant
to a federal statute limiting the disclosure of electronic communications to situations in which
reasonable cause is shown. That showing depends upon the underlying facts of the case.
¶ 59 Defendant also argues that Judge Hallock’s constitutional ruling was not substantive
because he ruled only on the procedural matter of whether a warrant, rather than a court order,
was required. Defendant distinguishes People v. Wilfong, 17 Ill. 2d 373, 375 (1959), where a
motion for substitution of judge was properly denied after the defendant unsuccessfully
challenged the constitutionality of the statute under which he was indicted. Defendant in our
case points out that he did not challenge the constitutionality of the statute under which he was
charged, but brought a procedural challenge to the federal statute’s method of disclosure of
electronic communications.
¶ 60 At oral argument, we granted the State’s motion for leave to cite Carpenter v. United
States, 585 U.S. ___, 138 S. Ct. 2206 (2018), in which the United States Supreme Court held
that a warrant is required before a governmental entity can seize electronic communications
pursuant to 18 U.S.C. § 2703(d). We are not persuaded of Carpenter’s relevance.
Nevertheless, we believe that the ruling in our case was substantive. It went to the State’s
ability to acquire evidence to use in prosecuting defendant. Consequently, we hold that the
court did not err in denying the motion for substitution of judge.
¶ 61 B. Reasonable Doubt
¶ 62 We next consider defendant’s argument that he was not proved guilty beyond a reasonable
doubt. Because we determine that defendant is entitled to a new trial based upon an evidentiary
error, to prevent the risk of double jeopardy, we must also consider this argument. See People
v. Macon, 396 Ill. App. 3d 451, 458 (2009). When a defendant challenges the sufficiency of the
evidence, the reviewing court must determine whether, viewing all of the evidence in the light
most favorable to the State, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt. People v. Collins, 214 Ill. 2d 206, 217 (2005).
¶ 63 Defendant asserts that Dr. Kalelkar’s testimony, contradicted as it was by Dr. Blum, was
insufficient to prove that Kathleen’s death was a homicide. The corpus delicti in a murder case
consists of two essential elements: (1) the fact of death and (2) the fact that the death was
caused by the criminal agency of some person. People v. Jones, 22 Ill. 2d 592, 595 (1961).
Here, Dr. Kalelkar testified that Kathleen died as a result of asphyxiation due to manual
strangulation. Dr. Blum disagreed, testifying that Kathleen’s death resulted from a cardiac
event, that is, natural causes. When confronted with a “battle of the experts” (see People v.
Smith, 253 Ill. App. 3d 443, 446-47 (1993) (classic battle of the experts is different experts
examining roughly the same information and arriving at opposite conclusions)), it is for the
trier of fact to evaluate each expert’s testimony and weigh its relative worth in context. People
v. Sims, 374 Ill. App. 3d 231, 251 (2007).
¶ 64 Here, aside from contrasting the testimony of the two experts, defendant also maintains
that Dr. Kalelkar did not complete her autopsy protocol with “any indication” of the cause of
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death, calling it only “asphyxiation.” That determination, defendant argues, is too equivocal to
support a conclusion that the manner of death was homicide. Defendant relies on People v.
Ehlert, 211 Ill. 2d 192 (2004), which also involved an opinion rendered by Dr. Kalelkar.
¶ 65 In Ehlert, the defendant was convicted of the first degree murder of her newborn child.
Ehlert, 211 Ill. 2d at 194. The issue was whether the child was born alive. Ehlert, 211 Ill. 2d at
194. Dr. Kalelkar performed the autopsy, found no unusual cause of death, and later told a
police officer that she could not tell for sure whether the baby was born alive. Ehlert, 211 Ill.
2d at 199. She left blank the space on the death certificate where she would normally fill in the
manner of death and instructed the police to investigate further. Ehlert, 211 Ill. 2d at 199. After
the police advised her of their investigation, which included witnesses’ statements, she
concluded that the baby had been born alive. Ehlert, 211 Ill. 2d at 199. Dr. Kalelkar then filled
in the manner of death on the certificate as “homicide.” Ehlert, 211 Ill. 2d at 208. At trial,
however, Dr. Kalelkar testified that the manner of death could have been natural causes.
Ehlert, 211 Ill. 2d at 209. The appellate court reversed the defendant’s conviction, and our
supreme court affirmed, holding that there was reasonable doubt as to the defendant’s criminal
agency. Ehlert, 211 Ill. 2d at 209-10.
¶ 66 Ehlert is inapposite. Here, contrary to defendant’s contention, Dr. Kalelkar did not
equivocate on the cause or manner of death. “Asphyxiation” certainly encompasses a killing
(see Webster’s Third New International Dictionary 130 (1993)), and at trial, relying on her
autopsy findings, the doctor was clear and specific that Kathleen’s neck had been compressed.
Accordingly, we conclude that any rational trier of fact could have found that Kathleen’s death
was caused by some person’s criminal agency. Consequently, we also hold that retrial is not
barred by double jeopardy.
¶ 67 C. Safarik’s Testimony
¶ 68 As noted, the trial court granted the State’s motion in limine No. 1, allowing Safarik’s
testimony over defendant’s objection. We will not reverse a trial court’s ruling on a motion
in limine absent an abuse of discretion. People v. Holman, 257 Ill. App. 3d 1031, 1033 (1994).
Also, the court made evidentiary rulings during Safarik’s testimony. The admission of
evidence is within the trial court’s sound discretion and will not be reversed unless that
discretion was clearly abused. Snelson v. Kamm, 204 Ill. 2d 1, 33 (2003).
¶ 69 Safarik testified that, as director of Behavioral Services International, he conducts
“analyses and interpretations” of complex violent crime scenes and violent crimes to
“understand essentially what happened in the crime, how it happened[,] and why the events
unfolded the way that they did.” Safarik testified that he also conducts “equivocal death
evaluations” in cases where the “manner of death is not well established.” According to
Safarik, the Kane County State’s Attorney’s Office asked him to examine the evidence from
the scene where Kathleen’s body was found, to determine (1) whether the scene was staged,
(2) the offender’s risk level, (3) a general offender motive, and (4) the “behavioral
manifestations at the scene,” meaning the offender’s modus operandi, ritual behavior, and
staging behavior.
¶ 70 Safarik testified that he typically reviews crime reports, criminal investigation reports,
crime scene photographs, autopsy protocols, autopsy photographs, diagrams and sketches of
the crime scene, and witness statements. He also reviews any toxicology reports. If he needs
the information, Safarik will ask to see the statements of witnesses who talked to the police
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about the victim’s habits. Safarik testified that he will also consider, as he did in the present
case, an accused’s statements, if they contribute to an understanding of the timeline of events
leading up to a murder. In the present case, Safarik considered Brandon’s statements as to
where Kathleen usually ran and the app on her iPhone that recorded that she usually ran in
Esping Park, but not near the railroad tracks.
¶ 71 From his review of the case, Safarik concluded the following: (1) Kathleen did not usually
run on the railroad tracks; (2) defendant’s statement to police that Kathleen left the house to go
running at 6:30 a.m. was inconsistent with the lividity present on her body less than half an
hour later, when the death scene photographs were taken, which indicated that she died prior to
6:30 a.m.; (3) the lividity on Kathleen’s right leg was inconsistent with her position on the
railroad tracks; (4) if she had been running, her shorts would have been tied and not loose;
(5) the absence of an undergarment or a liner in Kathleen’s running shorts was inconsistent
with her being out for a run; (6) because Kathleen had “fairly large” breasts, running in an
underwire bra would have been painful; (7) Kathleen had a large selection of sports bras, so
she would not have been running in an underwire bra; (8) the presence of the underwire bra
was inconsistent with defendant’s statement that Kathleen possessed running gear;
(9) Kathleen’s twisted bra strap would have been “very uncomfortable” and was inconsistent
with the way she would have put on the bra; (10) there was no sexual motive to the crime,
because Kathleen’s bra was covering half her breasts; (11) it was unlikely that Kathleen would
have put on her left sock with the heel twisted toward the top of her foot; (12) a clump of hair in
her right sock was inconsistent with the way a person would dress herself; (13) Kathleen was
not wearing an armband, which was inconsistent with witnesses’ statements that she wore one
when running; (14) the absence of earbuds was inconsistent with witnesses’ statements that
Kathleen listened to music while running; (15) the leaf material on Kathleen’s body was
inconsistent with that in the area where the body was found; (16) Kathleen’s iPhone was placed
on the tracks by someone; (17) a trail of dried saliva mixed with blood running down
Kathleen’s cheek was inconsistent with the way her head was positioned on the tracks,
indicating that she was on the tracks after the saliva had dried; (18) Kathleen was moved onto
the tracks after she died in a different location; (19) Kathleen died as a result of manual
strangulation; (20) a red mark on Kathleen’s neck was consistent with hands having been
around her neck; (21) a bruise under Kathleen’s chin was consistent with someone having
strangled her; (22) every form of asphyxiation except manual strangulation was ruled out; (23)
Kathleen’s injuries were inconsistent with a fall on the tracks; (24) scrapes on Kathleen’s shins
were postmortem because there was no blood; (25) Kathleen was incapacitated by alcohol and
did not see the attack coming; (26) the attack came on very quickly; (27) strangers do not stage
crime scenes; (28) a staged crime scene indicates that the killer was someone close to the
victim; (29) the offender attempted to make Kathleen’s death look like an accident; (30) the
leaf material found on Kathleen’s body was from her residence; and (31) based on the timeline
defendant gave to the police, Kathleen was killed in her residence.
¶ 72 Defendant argues that Safarik was improperly allowed to give an opinion as to the cause of
death in a close case where the cause and manner of death were contested by two
well-qualified, board-certified, forensic pathologists. Defendant additionally contends that
Safarik improperly opined on matters that were within the ken of the jurors when he testified
that the death scene was staged. Defendant asserts that Safarik essentially gave the State’s
closing argument.
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¶ 73 Expert testimony such as Safarik’s falls under the general rubric of “crime scene analysis,”
which involves the “gathering and analysis of physical evidence.” See Simmons v. State, 797
So. 2d 1134, 1151 (Ala. Crim. App. 1999). Here, the State also proffered Safarik as an expert
in the cause and manner of death as well as the habits or characteristics of people who stage
crime scenes. Profiling evidence usually involves a witness describing common practices,
habits, or characteristics of a group of people. People v. Vasser, 331 Ill. App. 3d 675, 687
(2002). Thus, Safarik also proffered profiling evidence.
¶ 74 At oral argument, we asked the State what Safarik’s area of expertise was. That question
was perspicacious because the State could not readily answer it. Indeed, Safarik’s opinions
ranged from forensic pathology, to botany, to the sartorial. Under the guise of expert “crime
scene analysis,” Safarik basically offered his subjective opinion that the State’s evidence was
sufficient to convict defendant. As the State admitted at oral argument, the purpose of Safarik’s
testimony was to “plug the holes” in the State’s case.
¶ 75 Illinois Rule of Evidence 702 (eff. Jan. 1, 2011) provides that, “[i]f scientific, technical or
other specialized knowledge will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion or otherwise.”
“Crime-scene analysis” testimony does not rest on scientific principles. Simmons, 797 So. 2d
at 1151; State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002). Rather, it is based on “specialized
knowledge” and offers “subjective observations and comparisons based on the expert’s
training, skill, or experience.” Simmons, 797 So. 2d at 1151. Therefore, such testimony is not
subject to the test outlined in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Simmons,
797 So. 2d at 1151.
¶ 76 We first consider defendant’s argument that Safarik was not competent to testify to
Kathleen’s cause of death. Defendant asserts that an expert’s opinion cannot exceed the area of
his or her expertise, relying on People v. Perry, 229 Ill. App. 3d 29 (1992). In Perry, the
defendant was convicted of killing her infant son by lying on top of him and smothering him
with a pillow. Perry, 229 Ill. App. 3d at 30-31. The appellate court reversed that conviction and
remanded for a new trial where the State’s pathologist opined that the child’s death was not an
accident because a sleeping mother would not roll on top of an active child without the child
making its distress known. Perry, 229 Ill. App. 3d at 32. The court held that the pathologist’s
expertise did not extend to determining the ability of a sleeping mother to “feel” her child.
Perry, 229 Ill. App. 3d at 33. While we agree that an expert cannot express an opinion on a
subject beyond his or her qualifications (see Bachman v. General Motors Corp., 332 Ill. App.
3d 760, 784 (2002) (mechanical engineer with 35 years’ experience could not testify to the
cause of a collision)), the question here is whether the cause of a person’s death is the subject
of only expert medical testimony or whether a lay person can so opine.
¶ 77 The rule in Illinois is that medical testimony is not necessary to prove the cause of death
where the facts proved are such that every person of average intelligence would know from his
or her own knowledge or experience that a wound was mortal. Waller v. People, 209 Ill. 284,
288 (1904); People v. Davidson, 82 Ill. App. 2d 245, 250 (1967). Thus, in Davidson, the
coroner’s testimony that the victim was dead, coupled with other testimony establishing a
criminal agency causing her death, was sufficient to sustain the murder verdict,
notwithstanding the lack of medical testimony as to the cause of death. Davidson, 82 Ill. App.
2d at 250. In Jones, a corpus delicti case (supra ¶ 63), the evidence of the cause of death was
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sufficient without medical testimony where the evidence showed that the defendant shot the
victim, the victim fell and was found lying in a pool of blood, and the victim was immediately
removed to a mortuary. Jones, 22 Ill. 2d at 597.
¶ 78 Here, medical evidence of the cause of Kathleen’s death was necessary because a lay
person of average intelligence would not know what killed her. She was found lying on the
railroad tracks, not breathing or moving. There were no gunshot wounds or stab wounds. The
body was warm, and there was no immediate evidence of foul play. Consequently,
Safarik—no matter how many crime scenes he had attended as a police officer, how much
study he had done on violent crime scenes as an FBI profiler, or how many courses he had
attended—was not qualified by knowledge, skill, experience, training, or education to opine on
the cause and manner of Kathleen’s death. See Snelson, 204 Ill. 2d at 24 (expert testimony is
admissible if the proffered expert is qualified by knowledge, skill, experience, training, or
education to render an opinion).
¶ 79 For the court to allow Safarik to opine that Kathleen died of manual strangulation was
especially egregious where defendant disputed Dr. Kalelkar’s conclusion as to Kathleen’s
cause of death and presented his own equally well-qualified forensic pathologist to testify that
she died of natural causes. Through Safarik’s inadmissible testimony, the State essentially
“broke the tie” by presenting a second opinion to corroborate Dr. Kalelkar’s. We hold that
Safarik’s opinion as to the cause of death was so highly prejudicial that we must reverse
defendant’s conviction.
¶ 80 We also note that it was beyond Safarik’s expertise to opine on the effects of lividity. As a
veteran of violent crime scene investigations, Safarik could doubtless identify the presence of
lividity. However, whether it was consistent or inconsistent with the position of Kathleen’s
body on the railroad tracks was appropriate testimony for a forensic pathologist, as lividity
correlates to the cause and manner of death. See People v. Legore, 2013 IL App (2d) 111038,
¶ 6 (forensic pathologist pinpointed time of death in part by analyzing lividity on victim’s
body).
¶ 81 In the same vein, Safarik should not have been permitted to testify that the vegetation on
Kathleen’s body came from her home because such an opinion was beyond his expertise and
the State presented no evidence of such a correlation. To be admissible, an expert’s opinion
must have an evidentiary basis, or else it is nothing more than conjecture and guess. City of
Chicago v. Concordia Evangelical Lutheran Church, 2016 IL App (1st) 151864, ¶ 72.
¶ 82 Next, we consider defendant’s contention that the remainder of Safarik’s testimony was
prejudicial because it consisted of conclusions that the jurors could draw for themselves. A
requirement of expert testimony is that it will assist the trier of fact in understanding the
evidence. Snelson, 204 Ill. 2d at 24. Expert testimony addressing matters of common
knowledge is not admissible unless the subject matter is difficult to understand and explain.
People v. Lerma, 2016 IL 118496, ¶ 23. Evidence is beyond the ken of the average juror when
it involves knowledge or experience that the juror lacks. People v. Mertz, 218 Ill. 2d 1, 72
(2005). Here, Safarik testified to conclusions that the ordinary juror could draw: an
experienced runner would not have dressed in the garments in which the body was found;
Kathleen would not have left her contacts, earbuds, and armband at home when she went
running; she would not have been running on the railroad tracks when her habit was to run in
the park; and she would not have put on a sock with the heel twisted to the top of her foot. We
agree with the Superior Court of New Jersey’s conclusion in State v. Lenin, 967 A.2d 915, 925
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(N.J. Super. Ct. App. Div. 2009), that none of this type of testimony should have been
admitted.
¶ 83 In Lenin, the court held that Safarik’s testimony about the “characteristics of the victim and
the crime scene” was inadmissible because he was “simply testifying about logical conclusions
the ordinary juror could draw from human behavior.” Lenin, 967 A.2d at 927. The court also
held that behavioral-science testimony, such as Safarik’s, must be evaluated under the test for
admission of scientific evidence. Lenin, 967 A.2d at 926. We disagree with the latter holding
because, as discussed, we believe that the better view is that crime-scene-analysis testimony is
not scientific. See Simmons, 797 So. 2d at 1151.
¶ 84 Further, in our case, Safarik ventured beyond “crime scene analysis” into profiling when he
testified to the characteristics of persons who stage crime scenes. Profiler testimony has been
excluded by other states’ supreme courts as unreliable. Mertz, 218 Ill. 2d at 72-73. In Mertz,
our supreme court declined to opine on the admissibility of such evidence, holding that any
error in admitting a profiler’s testimony comparing three distinct crime scenes, with a view as
to whether they could be connected, was harmless because police officers had testified to the
similarities that they had observed. Mertz, 218 Ill. 2d at 73-74. The court emphasized that the
profiler did not explicitly opine that the defendant committed the uncharged offenses that the
profiler had studied. Mertz, 218 Ill. 2d at 72.
¶ 85 Here, in testifying that a staged scene indicates that the killer is someone close to the
victim, Safarik indirectly, but pointedly, identified defendant as Kathleen’s killer because,
under the circumstances, no one else fit that profile. Our case is more like People v. Brown,
232 Ill. App. 3d 885 (1992), than Mertz. In Brown, the First District held that the defendant,
who was charged with possession of a controlled substance with intent to deliver, was
prejudiced by profiling testimony regarding the violent habits of drug sellers. Brown, 232 Ill.
App. 3d at 898. The court noted that the testimony “consisted of a complete profile of a drug
dealer which corresponded to the circumstances surrounding [the] defendant’s arrest.” Brown,
232 Ill. App. 3d at 899-900.
¶ 86 Trial courts are obliged to balance the probative value of expert testimony against its
prejudicial effect. Lerma, 2016 IL 118496, ¶ 23. Here, the court performed this analysis in
ruling on the State’s motion in limine No. 1, as it precluded Safarik from directly identifying
defendant as the killer or giving profiling testimony. Yet, at trial, Safarik was permitted to say
indirectly what he could not say directly. We follow Brown and hold that such profiling
evidence is inadmissible.
¶ 87 The State argues that the admission of Safarik’s testimony was harmless error because
(1) he drew conclusions that the jurors could have drawn on their own and (2) his testimony
was cumulative. In Mertz, the court held that the admission of profiling testimony was
harmless because “any inferences drawn by [the profiler] were commonsense ones that the
jurors no doubt had already drawn for themselves.” Mertz, 218 Ill. 2d at 74. That reasoning
does not apply in our case, where one of the claimed errors is that Safarik’s testimony was
inadmissible precisely because it was within the knowledge of the average juror. Ironically, the
court’s discussion in Mertz supports defendant’s argument.
¶ 88 We also reject the argument that Safarik’s testimony was cumulative. While Dr. Kalelkar
opined that Kathleen died of manual strangulation and also opined on the staging of the death
scene, her testimony was undermined by the fact that she did not complete her autopsy
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protocol. As the State forthrightly conceded at oral argument, Safarik’s testimony was
designed to “plug the holes.”
¶ 89 Also, unlike in Brown, where the error was found to be harmless, the evidence of guilt in
the present case was not overwhelming. Dr. Blum questioned Dr. Kalelkar’s methodology and
conclusions. There was no eyewitness, no confession, and no forensic evidence connecting
defendant to the crime. Consequently, we hold that it was prejudicial error to grant the State’s
motion in limine No. 1 and to permit the testimony at defendant’s trial.
¶ 90 On retrial, the arguments that defendant raises concerning evidence of Kathleen’s family’s
suffering and the State’s rebuttal closing argument are likely to arise, so we briefly address
them.
¶ 91 Kristine testified that she was close to Kathleen (that Kathleen was like her mother) and
that Kathleen had shopped for Kristine’s wedding gown. Kristine described how upset she was
when she was told of Kathleen’s death and that she was pacing and crying. Kurt testified that
he was frantic and screaming when he heard the news of Kathleen’s death. The court overruled
defendant’s objections to this testimony. While some reference to the victim’s family is proper
and inevitable (People v. Campos, 227 Ill. App. 3d 434, 449 (1992)), evidence that dwells on
the victim’s family is unduly prejudicial. People v. Bernette, 30 Ill. 2d 359, 371 (1964). Here,
the evidence of the family’s emotional attachments and reactions went beyond anything that
was relevant and was introduced solely for its emotional impact. On retrial, such testimony is
inadmissible.
¶ 92 In his rebuttal closing argument, the prosecutor told the jurors that it was “okay” for them
to have “questions” about the evidence and still convict defendant. The prosecutor gave an
example of a permissible question dealing with what point of access defendant took to get the
body onto the railroad tracks. He then reiterated that the jurors could have questions, “as long
as those questions don’t amount to a reasonable doubt.” This argument was an improper
attempt to define and dilute the State’s burden of proof (see People v. Evans, 2016 IL App (3d)
140120, ¶ 59 (prosecutor’s rebuttal remarks improperly conflated the beyond-a-reasonable-
doubt standard with a question of whether the defendant’s actions were reasonable, lessening
the State’s burden of proof)), and nothing close to it is permitted on retrial. It is well
established in Illinois that “reasonable doubt” needs no definition. People v. Amos, 46 Ill. App.
3d 899, 902 (1977).
¶ 93 III. CONCLUSION
¶ 94 For the foregoing reasons, the judgment of the circuit court of Kane County is reversed,
and the cause is remanded for a new trial.
¶ 95 Reversed and remanded.
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