{ "id": 3236611, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. STEVEN PAUL LINSCOTT, Appellee", "name_abbreviation": "People v. Linscott", "decision_date": "1991-01-31", "docket_number": "No. 65792", "first_page": "22", "last_page": "42", "citations": [ { "type": "official", "cite": "142 Ill. 2d 22" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "135 Ill. App. 3d 773", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600621 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/135/0773-01" ] }, { "cite": "114 Ill. 2d 340", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542432 ], "weight": 3, "pin_cites": [ { "page": "349" }, { "page": "357", "parenthetical": "Clark, C.J., concurring in part and dissenting in part" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/114/0340-01" ] }, { "cite": "159 Ill. App. 3d 71", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3611649 ], "weight": 21, "pin_cites": [ { "page": "81" }, { "page": "74" }, { "page": "74" }, { "page": "74" }, { "page": "78-79" }, { "page": "78-79" }, { "page": "79" }, { "page": "79" }, { "page": "77" }, { "page": "74" }, { "page": "75-76" }, { "page": "76" }, { "page": "76" }, { "page": "91", "parenthetical": "McNamara, P.J., dissenting" }, { "page": "91", "parenthetical": "McNamara, P.J., dissenting" }, { "page": "91", "parenthetical": "McNamara, P.J., dissenting" }, { "page": "84" }, { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/159/0071-01" ] }, { "cite": "113 Ill. 2d 83", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3172916 ], "pin_cites": [ { "page": "94" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0083-01" ] }, { "cite": "99 Ill. 2d 262", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163268 ], "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0262-01" ] }, { "cite": "106 Ill. 2d 373", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3139376 ], "weight": 3, "year": 1974, "pin_cites": [ { "page": "391" }, { "page": "391" }, { "page": "391" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0373-01" ] }, { "cite": "59 Ill. 2d 516", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2959707 ], "weight": 2, "pin_cites": [ { "page": "522" }, { "page": "522" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0516-01" ] }, { "cite": "79 Ill. App. 3d 156", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5608950 ], "weight": 2, "pin_cites": [ { "page": "168" }, { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/79/0156-01" ] }, { "cite": "101 Ill. App. 3d 397", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3081254 ], "weight": 3, "pin_cites": [ { "page": "402-03" }, { "page": "402-03" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0397-01" ] }, { "cite": "92 Ill. 2d 440", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3097342 ], "year": 1963, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0440-01" ] }, { "cite": "29 Ill. 2d 511", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2823362 ], "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/29/0511-01" ] }, { "cite": "128 Ill. 2d 540", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228677 ], "weight": 2, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0540-01" ] }, { "cite": "103 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152076 ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0001-01" ] }, { "cite": "92 Ill. 2d 545", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3097208 ], "pin_cites": [ { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/92/0545-01" ] } ], "analysis": { "cardinality": 1085, "char_count": 33221, "ocr_confidence": 0.746, "pagerank": { "raw": 3.4346829930314993e-07, "percentile": 0.8793296443151705 }, "sha256": "0203293e532c0b312e5f1eb8e529b0ef020ebfeed656051425dc1031e25b7753", "simhash": "1:cd3f6986da39dd71", "word_count": 5490 }, "last_updated": "2023-07-14T20:01:40.347119+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. STEVEN PAUL LINSCOTT, Appellee." ], "opinions": [ { "text": "JUSTICE CLARK\ndelivered the opinion of the court:\nIn December 1980, defendant, Steven Paul Linscott, was charged by indictment with three counts of murder (Ill. Rev. Stat. 1979, ch. 38, par. 9\u20141(a)(2)), two counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A\u2014 2), and a single count of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11\u20141(a)) in the death of Karen Ann Phillips. The armed violence \"charges were dismissed before trial. A Cook County jury found defendant not guilty of rape but guilty of murder. He was sentenced to 40 years\u2019 imprisonment.\nThis is the second time the case is before this court. Previously, the appellate court reversed defendant\u2019s conviction, holding that the evidence of guilt was legally insufficient. (People v. Linscott (1985), 135 Ill. App. 3d 773.) This court granted the State\u2019s petition for leave to appeal (103 Ill. 2d R. 315) and reversed the appellate court decision (People v. Linscott (1986), 114 Ill. 2d 340). The case was remanded to the appellate court for consideration of other issues raised on appeal that were not addressed by the appellate court. Linscott, 114 Ill. 2d at 349.\nOn remand, the appellate court again reversed defendant\u2019s conviction and remanded for a new trial. (159 Ill. App. 3d 71.) The court held that defendant was denied a fair trial because, in closing argument, the prosecutor misrepresented two of the three elements of the State\u2019s evidence against the defendant (i.e., the blood-typing and hair-comparison evidence). (159 Ill. App. 3d at 81.) We granted the State\u2019s petition for leave to appeal (107 Ill. 2d R. 315).\nThe detailed facts of this case have been recounted in both appellate court opinions as well as in our earlier decisi\u00f3n. Therefore, for purposes of this opinion, we will provide only a brief summary of the facts, highlighting those we consider relevant to our decision in this appeal.\nKaren Ann Phillips, the victim, was found dead in her apartment in Oak Park on October 4, 1980. Police found the victim\u2019s body face down and naked except for a nightgown pushed up around her neck and shoulders. An autopsy performed on the victim revealed that her death was the result of several blows to her head and strangulation.\nHairs were found, among other places, clasped in the victim\u2019s hands, in her pubic region and in a carpet on the floor of her apartment. These hairs were removed and tests were conducted on them as part of the murder investigation. A vaginal swab was also taken from the victim and analyzed for blood type and the presence of seminal material.\nOn the afternoon of October 4, Oak Park police canvassed the neighborhood and spoke with defendant. At the time of the murder, defendant lived in the apartment building immediately next to that of the victim. The police asked defendant and his wife if they had heard or seen anything unusual earlier that morning. The police told defendant and his wife that someone had been murdered at about 1 a.m.\nAccording to defendant, at that point he remembered a dream from the previous night involving a brutal beating. The dream occurred around 1 a.m. He did not mention the dream to the police at this time. However, on October 6, defendant called the Oak. Park police and related his dream to Officer Robert Scianna. Scianna asked defendant to produce a written version of the dream. Defendant did so and Scianna picked it up at defendant\u2019s home the following day.\nOn October 8 and 10, defendant came to the Oak Park police station and gave two tape-recorded interviews describing the dream. After the second interview, defendant accompanied the officers to a hospital where he gave samples of blood, saliva and hair. Defendant and the police officers returned to the police station, where the officers accused defendant of committing the murder. Defendant was not arrested, however, until November 25. Defendant has at all times denied murdering the victim.\nAt trial, the State relied on three pieces of evidence to convict defendant of the victim\u2019s murder: the dream defendant recounted to the police which, according to the State, paralleled the crime so closely that it was proof defendant committed the murder; head and pubic hairs found in the victim\u2019s apartment and on her body which were consistent with defendant\u2019s head and pubic hair; and the results of blood-typing tests which showed that the seminal material taken from the victim could have come from defendant.\nThis appeal concerns comments made by the prosecutor in argument with respect to the physical evidence in the case. (This case was tried by two prosecutors; \u201cprosecutor\u201d shall be used throughout this opinion when referring to one or both of the prosecutors.) The appellate court held that the prosecutor\u2019s \u201cclosing arguments to the jury, relating to blood and hair comparisons, were so egregious that a denial of a fair trial resulted.\u201d (159 Ill. App. 3d at 74.) It is unclear whether the appellate court reversed due to specific improper statements or the effect of all the improper statements. The court also concluded that \u201csubstantial rights\u201d were affected by the improper comments because the evidence in the case is so closely balanced. (159 Ill. App. 3d at 74.) Thus, although no objections were made to the prosecutor\u2019s comments at trial, the court applied the plain error doctrine to review the errors. (159 Ill. App. 3d at 74.) Based on this review, the appellate court remanded for a new trial.\nWe find that certain statements the prosecutor made during closing statements regarding the blood and hair comparisons were improper, and in addition, we find that statements the prosecutor made during opening were also improper. We also believe that application of the plain error doctrine is appropriate. (See, e.g., People v. Szabo (1986), 113 Ill. 2d 83, 94 (\u201cPlain error *** is ***\u25a0 to be invoked only when the error alleged is \u2018so substantial as to deprive defendant of a fair trial\u2019 [citation]\u201d); People v. Sanders (1983), 99 Ill. 2d 262, 273 (\u201cThe plain error doctrine is properly applied *** where the error alleged is so substantial as to reflect on the fairness or impartiality of the trial regardless of how closely balanced the evidence is [citations]\u201d).) Because it is unclear whether the appelldte court reversed due to specific improper statements or the effect of all the improper statements, we will examine all of the statements the appellate opinion discusses.\nProsecutorial misconduct in closing argument warrants reversal of the conviction and a new trial if the improper \u201c \u2018 \u201cremarks *** constitute^] a material factor in the conviction.\u201d \u2019 \u201d (People v. Lyles (1985), 106 Ill. 2d 373, 391, quoting People v. Fields (1974), 59 Ill. 2d 516, 522.) The issue is whether \u201cthe jury could *** have reached a contrary verdict had the improper remarks not been made.\u201d (People v. Witted (1979), 79 Ill. App. 3d 156, 168.) If a reviewing court \u201ccannot say that the prosecutor\u2019s [improper] comments did not contribute to the defendant\u2019s conviction[ ],\u201d the court should order a new trial. Witted, 79 Ill. App. 3d at 166.\nWe will first examine the prosecutor\u2019s comments with respect to the hair-comparison evidence. The appellate court concluded that the prosecutor erred by arguing in closing that hairs \u201cmatching\u201d defendant\u2019s had been found at the crime scene; by claiming that defendant\u2019s hairs had been found there; by claiming that the State\u2019s experts\u2019 use of the word \u201cconsistent\u201d meant the same thing as a layman\u2019s use of the word \u201cidentical\u201d; and by claiming that odds published by a forensic scientist, Barry Gaudette, were applicable to the hair comparisons made by one of the State\u2019s experts. 159 Ill. App. 3d at 78-79.\nThree witness testified on the subject of hair comparisons. Mark Stolorow, the coordinator of serology for the Illinois Department of Law Enforcement, testified for the State regarding the methods of hair comparison that are employed by the Department. Stolorow explained that through the use of a \u201ccomparison microscope,\u201d a simultaneous visual comparison is made of the characteristics of hair samples from two different sources. This technique excludes classes of individuals from consideration as suspects in an investigation and is conclusive, if at all, only to negate identity. See 159 Ill. App. 3d at 78-79.\nThe State\u2019s expert, Mohammad Tahir, a forensic scientist for the Illinois Department of Law Enforcement, testified as to the hair comparisons he performed on the hair samples from the victim and from defendant. Tahir testified that he looked at approximately 7 to 12 characteristics. Based upon the comparisons he performed, Tahir concluded that certain of the hairs found in the victim\u2019s apartment were \u201cconsistent with\u201d the samples provided by defendant. Tahir defined \u201cconsistent\u201d as \u201cno dissimilarity.\u201d Tahir testified that defendant\u2019s hair samples were \u201cconsistent\u201d with those hairs found in the victim\u2019s right hand, hairs found on the carpet, and two pubic hairs that were combed from the victim\u2019s pubic region. On cross-examination, however, Tahir conceded that a person cannot be identified by the hairs he leaves behind:\n\u201cDEFENSE: And you sure can\u2019t determine from whose head that hair came from, can you?\nTAHIR: You cannot positively say.\n* * *\nQ. Okay, you couldn\u2019t even say that if you had two pieces of hair from the same head, could you?\nA. My answer is the same, what I told you that you cannot say that this hair came from this individual, only could say is that it is consistent with [sic].\u201d\nDespite this testimony, the prosecutor argued that hairs found in the victim\u2019s apartment and on the victim\u2019s body were in fact defendant\u2019s hairs. In closing argument, the prosecutor told the jury that \u201cthe rug in the area where Karen was laying [sic] was ripped out sometime later, rolled up and shipped to the laboratory. And that another group of hairs were obtained. The head hairs of Steven Linscott.\u201d In closing argument, the prosecutor made such claims repeatedly: \u201che [defendant] left eight to ten hairs of his in that apartment; \u201chis [defendant\u2019s] pubic hairs [were found] in her crotch\u201d; and \u201chis [defendant\u2019s] hairs are found in the most private parts of the woman\u2019s body.\u201d\nWith these statements, the prosecutor improperly argued that the hairs removed from the victim\u2019s apartment were conclusively identified as( coming from defendant\u2019s head and pubic region. There simply was no testimony at trial to support these statements. In fact, Stolorow, Tahir, and the defense hair expert, Kenneth Siegesmund, testified that no such identification was possible.\nThe impropriety of such an argument was recognized in People v. Giangrande (1981), 101 Ill. App. 3d 397. There, as here, the State\u2019s expert testified only that hairs found at the crime scene \u201ccould have originated from the defendant,\u201d yet the prosecutor argued that defendant\u2019s hairs had in fact been found there. (Giangrande, 101 Ill. App. 3d at 402-03.) The appellate court reversed the conviction, holding that the prosecutor had improperly \u201coverstated the evidence.\u201d (Giangrande, 101 Ill. App. 3d at 402-03.) We note that a pretrial colloquy in the record reveals that the State was aware of Giangrande, which makes the prosecutor\u2019s improper comments here more objectionable.\nThe prosecutor\u2019s misrepresentation of the hair-comparison evidence was compounded by his argument that the mathematical probabilities that the hairs found on the victim\u2019s body and in her apartment came from anyone other than defendant were minuscule. The prosecutor relied on hair-comparison studies published by the forensic scientist Barry Gaudette for the statistics he used. The appellate court opinion concluded that \u201c[plainly, the figures from Gaudette\u2019s study do not have general application to hair comparisons\u201d (159 Ill. App. 3d at 79) and that the prosecutor\u2019s message to the jury, based on these odds, \u201cwas *** a distortion of [the witness\u2019] testimony.\u201d 159 Ill. App. 3d at 79.\nThe only testimony heard on the figures was elicited from Siegesmund on cross-examination. The entire text of the cross-examination follows:\n\u201cPROSECUTOR: You are aware of a forensic scientist by the name of Barry Gaudette, are you not?\nSIEGESMUND: Gaudette is one of the proponents of X-ray analysis.\nQ. Mr. Gaudette performed a study in the early to middle 70\u2019s, did he not, with regard to the percentages and probabilities of hair comparisons?\nA. Absolutely.\nQ. And his technique that he used was with a comparison microscope, was it not sir?\nA. He used comparison. And he, also, used other microscopes.\nQ. But he used a comparison microscope. The one microscope you did not use, is that correct?\nA. Yes, he did use that, also.\nQ. And his probabilities came to the substance that a match between head hairs is likely in one out of every 4,500 cases, is that correct.\nA. Well, can I explain that?\nQ. I\u2019ll rephrase the question. Did he not come up with a figure that any two individuals, the probability they would have matching head hairs is a likelihood in one out of 4,500?\nA. It depends on how many hairs you are talking about.\nQ. Would you say, the more hairs you have to compare, the closer to that figure you get?\nA. The higher the probability, that is correct.\nQ. So in this case if we had but one hair that Mr. Tahir linked to Mr. Linscott, that would have that much meaning, is that correct?\nA. Yes. Using the conventional techniques that Gaudette used, yes.\nQ. That Gaudette used, that\u2019s correct?\nA. Yes.\nQ. If you have two to three hairs, your information is a little better, is that correct?\nA. Yes. Only if you do the forty tests he recommends.\nQ. Fine, if you had, approximately, seven or eight hairs, you have more information to base it on?\nA. According to Gaudette, that would give you a higher probability. If you did the forty tests.\u201d (Emphasis added.)\nBased on the evidence at trial, the mathematical probabilities from Gaudette\u2019s study should not have been considered by the jury. Siegesmund made it clear in his testimony that the findings in Gaudette\u2019s studies were based on the completion of UO tests, not simply the 7 to 12 comparison tests performed by Tahir. (See Linscott, 114 Ill. 2d at 357 (Clark, C.J., concurring in part and dissenting in part).) There is no evidence that \u201cforty tests\u201d were performed in this case; therefore, there is no foundation for the assumption that Gaudette\u2019s mathematical statistics applied.\nIn his closing argument, however, the prosecutor made the following statement to the jury:\n\u201cThen I asked [Siegesmund] if he was aware of the Chief Forensic Scientist for the Royal Canadian Mounted Police, Mr. Dejur? [sic (Gaudette)] And the man says yes, of course, he is the leading man in his field. And I asked him are you familiar with the figure formula and those were that of any two head hairs matched from two separate individuals it occurs in one out of every forty five hundred times.\nI asked Mr. Siegesmund are you also familiar with the fact that one person may have the same head hair does not mean that he has the same pubic hair and that the pubic hair ratio in any two people matched are one in eight hundred and I leave it to you, Ladies and Gentlemen of the jury, to figure out the probability or .likelihood of anybody having the same head hair and the same pubic hair. It is a figure of one out of every forty-five hundred and one out of every eight hundred.\u201d\nThe prosecutor\u2019s comments were without foundation and were patently inapplicable to the results of the tests performed on the hairs in the case. Nonetheless, as was-argued by defendant in his brief to the court, the prosecutor all but told the jury that the odds of another individual\u2019s having hair with the same characteristics as defendant\u2019s hair were somewhere in the area of one in 3 million. In other words, the odds that another individual would have both head hair and pubic hair with the same characteristics as defendant\u2019s head hair and pubic hair are the product of one in 4,500 multiplied by one in 800. In fact, not only was the jury told that the likelihood that anyone other than defendant had left hairs in the victim\u2019s apartment was incredibly small, but the prosecutor told the jurors that the hairs found in the victim\u2019s apartment, in the rug under her body, and in her pubic region were, conclusively, defendant\u2019s hairs. We are compelled to find that these statements about the hair-comparison evidence, when considered by the jury which heard defendant testify that he had a dream on the night of the victim\u2019s death paralleling the events of her death in some respects, so prejudiced defendant\u2019s rights that they alone are reversible and require remanding the cause for a new trial.\nThe appellate court, however, concluded that other statements the prosecutor made in closing regarding the hair-comparison evidence were also improper. Specifically, the appellate court concluded that the prosecutor\u2019s repeated claim that hairs found at the scene of the crime and on the victim\u2019s body \u201cmatched\u201d defendant\u2019s hair was a \u201cdistortion of Tahir\u2019s testimony, [and] also a distortion of the meaning of the evidence.\u201d (159 111. App. 3d at 79.-) The opinion notes that these claims were especially misleading in light of the fact that Tahir declined to substitute the word \u201cmatch\u201d in place of \u201cconsistent\u201d when the prosecutor attempted to do so:\n\u201cQ. So again, all we are talking about is that they match in every respect, is that correct?\nA. They were consistent.\u201d\n159 Ill. App. 3d at 77.\nIn the prosecutor\u2019s opening statement, he told the jury that \u201cthe hairs from Karen\u2019s right hand, not one, not two, but more matched the defendant Steven Linscott.\u201d The prosecutor also told the jury that \u201cthe two pubic hairs also matched the defendant Steven Linscott.\u201d Explaining to the jury that defendant asked the police why he was being arrested, the prosecutor told the jury that \u201c[defendant] was told because your hairs match.\u201d In closing arguments, the prosecutor repeated this \u201cmatching\u201d theme, arguing to the jury that \u201c[p]ubic hair in the woman\u2019s crotch match[ed] Mr. Linscottfs].\u201d \u201cThe hairs,\u201d the prosecutor argued, \u201ctie him up to it.\u201d\nWe also believe that the prosecutor\u2019s use of the word \u201cmatch\u201d or \u201cmatched\u201d misrepresented the scientific evidence to the jury and was improper in light of the refusal of the State\u2019s own expert to use the word when testifying about the evidence. Tahir\u2019s testimony was simply that the hairs from defendant were \u201cconsistent\u201d with those found on the victim and in her apartment. To tell the jury otherwise, that is, that the hairs matched, was not supported by the testimony at trial.\nThe prosecutor was entitled, of course, to summarize the testimony and urge the jury to convict defendant based on the evidence. However, to say that the hairs \u201cmatched\u201d rather than were \u201cconsistent\u201d was not based on the evidence. We are unpersuaded by the State\u2019s claim that the words \u201cmatched\u201d and \u201cconsistent\u201d are \u201cin some respects synonyms of each other.\u201d While it may be true that all things that \u201cmatch\u201d are also \u201cconsistent,\u201d it is not true that all things that are \u201cconsistent\u201d also \u201cmatch.\u201d\nFurther, we believe use of the word \u201cmatch\u201d misrepresented the essential nature of hair comparison. Unlike a fingerprint, for example, an individual\u2019s hair does not have characteristics that are unique only to his hair. In fact, as was revealed in Stolorow\u2019s testimony, hairs on an individual\u2019s head may vary from hair to hair. To say that the hair samples taken from defendant \u201cmatched\u201d the hairs found on the victim\u2019s body and in her apartment is to argue, essentially, that the source of these hairs was defendant. And, unlike a fingerprint, hair cannot be used to identify an individual.\nDespite our analysis, however, we are satisfied that these \u201cmatch\u201d or \u201cmatched\u201d remarks alone did not \u201c \u2018 \u201cconstitute a material factor in the conviction.\u201d \u2019 \u201d (Lyles, 106 Ill. 2d at 391, quoting Fields, 59 Ill. 2d at 522.) The prosecutor\u2019s \u201cmatch\u201d comments were improper, but we do not find, as did the appellate court, that they were so \u201cegregious\u201d as to deny defendant a fair trial. 159 Ill. App. 3d at 74.\nLikewise, we disagree with the appellate court\u2019s conclusion that the prosecutor's use of the word \u201cidentical\u201d was in error. In his closing argument, the prosecutor told the jury that Tahir had looked at \u201ceighteen\u201d different characteristics. He then argued:\n\u201cWhat does [Tahir] mean by consistent. He means there is nothing dissimilar.\nI would suggest to you Ladies and Gentlemen if I said there were two American flags right there and they were both twelve by eight and that they had the same number of stars and stripes and had the same coloring you would sit there and say well there is nothing dissimilar about those two, they are identical.\nBut not a scientist. A scientist will state that every aspect that I examined they were consistent. And what does that mean. There was nothing different. And to a layman it means identical as the two American flags.\u201d\nThe prosecutor did not use the word \u201cidentical\u201d to overstate the evidence, or to improperly make it \u201cmore conclusive\u201d than it was, as defendant would have this court believe. If the prosecutor can be faulted for overstating the hair-comparison evidence, it would not be with respect to his statements that the hairs compared \u201cmatched\u201d or were \u201cidentical,\u201d but rather, in telling the jury that the hairs found on the victim\u2019s body and in her apartment were defendant\u2019s hairs. We do not find the prosecutor\u2019s use of the word \u201cidentical\u201d (which appears only once in his statements) improper, because it appears in an analogy he created to explain the evidence to the jury. The prosecutor accurately summarized Tahir\u2019s testimony about the meaning of \u201cconsistent,\u201d and then, in argument, \u201csuggested\u201d to the jury what that testimony meant to them as laypersons. Having heard the testimony, the jury was free to reject the prosecutor\u2019s analogy.\nThe appellate court also found the prosecutor made improper comments regarding the results of blood comparisons between defendant\u2019s and the victim\u2019s blood samples. (159 Ill. App. 3d at 75-76.) Blood-typing tests were performed on a sample of the victim\u2019s blood and on the blood and saliva samples provided by defendant. As -to the victim, these tests revealed that she was a secretor and that her ABO blood type was 0. As to defendant, the tests revealed that he is a nonsecretor whose ABO blood type is AB.\n\u201cSecretors\u201d and \u201cnonsecretors\u201d are classifications that refer to groups of individuals whose bodies do (secretors) or do not (nonsecretors) replicate their ABO blood types in body fluids other than blood. Because defendant is a nonsecretor, blood-typing tests performed on any of his body fluids other than blood, such as semen, would not reveal his ABO blood type. In circumstances where defendant\u2019s body fluids were combined with the body fluids of another individual (as during sexual intercourse), blood-typing tests performed on the resulting mixture would reveal only the blood type of defendant\u2019s partner.\nBlood-typing tests were also performed on the vaginal swab taken from the victim. Tahir testified that the tests revealed the presence of seminal material and ABO blood type 0. The results of the tests performed on the vaginal swab supported the conclusion that the victim had sexual intercourse prior to her death with either a secretor with type 0 blood or a nonsecretor.\nIn opening and closing statements, however, the prosecutor simply ignored the fact that the seminal material could have come from a secretor with type 0 blood and repeatedly stated that it came from a nonsecretor. In the words of the appellate court opinion, the prosecutor \u201csimply made up\u201d the evidence that the seminal material on the vaginal swab came from a nonsecretor. (159 Ill. App. 3d at 76.) This \u201cmade-up evidence\u201d was doubly devastating because not only was it false, but it reduced the pool of possible assailants to a relatively small percentage of the population, that is, nonsecretors. (See 159 Ill. App. 3d at 76.) Tahir testified that only 20% of the population are nonsecretors (contrary to the prosecutor\u2019s statement that only 15% of the population fall into this category).\nThis contention first appears in the prosecutor\u2019s opening statements:\n\u201cWe expect the evidence to show that when an analysis on [defendant\u2019s] saliva was done it turned out to be what they call a non-secretor. *** When the laboratory went further and tested the vaginal swab they couldn\u2019t determine a blood type because it came back consistent with a non-secretor. Only fifteen per cent of the population.\u201d\nIn closing argument, the prosecutor stated: \u201cKaren was raped by a non-secretor and the defendant is a nonsecretor.\u201d Later, he stated:\n\u201c[Defense counsel] says you must ask yourself where is the link. The link is the semen matching the non-secretor. [Defendant] is a non-secretor *** Seminal material. One fact it came from a non-secretor. [Defendant] is a non-secretor.\u201d (Emphasis added.)\nA prosecutor must confine his arguments to the evidence and to \u201creasonable inferences\u201d that follow from it. (See, e.g., People v. Carlson (1982), 92 Ill. 2d 440, 449; People v. Beier (1963), 29 Ill. 2d 511, 517.) We believe that the prosecutor in the instant case contravened this fundamental rule. Evidence was presented that there were two possible sources of the seminal material \u2014 either a male secretor, with type 0 blood, or a male nonsecretor, with either type 0 or type AB blood. No evidence was presented, however, that the seminal material was more likely from one of these sources than from the other. In fact, Tahir testified that the results of the tests conducted on the swab supported both conclusions.\nTherefore, the prosecutor\u2019s conclusion that \u201cKaren was raped by a nonsecretor\u201d plainly cannot be inferred from the evidence. The only conclusion supported by the evidence is that the victim was raped by a nonsecretor or a secretor with type 0 blood. Also improper were the prosecutor\u2019s arguments that \u201cthe vaginal swab *** came back consistent with a non-secretor\u201d and that the \u201cseminal material *** came from a non-secretor.\u201d Although the evidence supports the proposition that a nonsecretor was a possible source of the seminal material found in the victim\u2019s body, the existence of such a possibility does not permit the conclusion that the material could only have come from such a person.\nWe agree with the appellate court\u2019s conclusion that the prosecutor misrepresented the blood-typing evidence in closing and find that these comments alone were sufficient to require reversal and remandment for a new trial. This court has previously adopted the reasoning of the appellate court decision on this issue. In People v. Turner (1989), 128 Ill. 2d 540, this court was asked to decide whether the prosecutor in that case had misrepresented the physical evidence connecting the defendant to the victim. In holding that he had not, this court referred to the Linscott opinion:\n\u201cIn People v. Linscott (1987), 159 Ill. App. 3d 71, the prosecutor clearly mischaracterized the evidence when he told the jury that a vaginal swab indicated that the victim had been raped by a nonsecretor, a person whose blood type cannot be detected in his body fluids, and that the defendant was a nonsecretor. This evidence was made up by the prosecutor because no one testified that the victim was raped or that the seminal material found came from a nonsecretor.\u201d (Turner, 128 Ill. 2d at 559.)\nAlthough the court in Turner distinguished Linscott on its facts, this court did not reject the appellate court\u2019s analysis.\nIn defense of the prosecutor\u2019s statements regarding the blood-typing tests, both the State and the dissent below observe that a prosecutor may comment on the evidence, even if contradictory evidence was presented. (159 Ill. App. 3d at 91 (McNamara, P.J., dissenting); People v. Gacy (1984), 103 Ill. 2d 1.) This is true but irrelevant. Evidence was presented at trial that there were two alternative sources of the seminal material. Alternative evidence is certainly not to be construed as contradictory evidence, allowing a prosecutor to improperly argue unsupported conclusions to a jury. The question here is whether the prosecutor\u2019s argument reasonably followed from the testimony of the State\u2019s own experts. We conclude that the answer is no.\nFinally, the dissent below concludes that the \u201cbrief comments\u201d made by the prosecutor with regard to the blood-typing test results do not constitute reversible error in light of the length of the trial. (159 Ill. App. 3d at 91 (McNamara, P.J., dissenting).) Moreover, the dissent concludes that \u201c[t]he majority dramatizes and magnifies the effect of the prosecutor\u2019s language by placing the two quotations next to each other when they are actually separated by 63 pages ***.\u201d 159 Ill. App. 3d at 91 (McNamara, P.J., dissenting).\nThere were in fact four (not two) prejudicial comments regarding the blood-typing test results: one in the opening statement, one in the opening portion of the closing argument, and two in rebuttal. However, we believe that more significant than the number of prejudicial comments is the fact that every one of the prosecutor\u2019s comments regarding the blood-typing evidence misrepresented the evidence. The weight of the evidence in a case is a relevant consideration in determining whether the remarks prejudiced the defendant. The closer the evidence is in the case, the greater the likelihood of prejudice. (See, e.g., Lyles, 106 Ill. 2d at 391; People v. Weaver (1982), 92 Ill. 2d 545, 560.) We believe that the evidence in this case was closely balanced, making the prejudicial impact of the prosecutor\u2019s misrepresentations of the blood-typing evidence more significant.\nFinally, in remanding for a new trial on the murder charges, the appellate court, sua sponte, raised the issue of the relevancy of the vaginal swab evidence. The court held that \u201cthe vaginal swab evidence would not be relevant as substantive evidence in the new trial of the murder charge.\u201d (159 Ill. App. 3d at 84.) Even if the swab were to be considered relevant, the majority suggested that it would be subject to exclusion because of \u201cthe State\u2019s advertent destruction of the vaginal swab.\u201d (159 Ill. App. 3d at 84 n.7.) Alternatively, the court held that \u201cto the extent that the vaginal swab evidence could possibly have any probative value, its probative value is substantially outweighed by the danger of unfair prejudice that would result from the admissibility of that evidence.\u201d 159 Ill. App. 3d at 85.\nAlthough the substantive value of the swab may be limited, this alone does not require that the evidence be excluded at a new trial on the murder charge. The State argues that, although it is of limited value, the swab evidence is relevant because it has a \u201ctendency to prove that defendant was a personal acquaintance of the victim and therefore could have been her murderer.\u201d We agree. Granted, the results performed on the swab were inconclusive as to the source of the seminal material. However, the results failed to exclude defendant from the pool of males who may have \"had a sexual encounter with the victim. Consequently, the results also failed to eliminate defendant as a suspect in the victim\u2019s homicide.\nBecause the appellate court considered the relevance of the swab evidence sua sponte, neither party before this court has had the opportunity to adequately address the issues of either the evidence\u2019s relevance on the murder charge alone or the relative prejudice that would result in the event the evidence were excluded from a new trial. We do not believe the appellate court is the proper forum to first consider these issues, especially when the review is initiated by that court, without benefit of briefing or argument by the parties. These issues should be considered by the trial court on remand before they are considered by a reviewing court, if a review of the trial court\u2019s decision on these issues is ever in fact sought. We conclude that exclusion of the evidence is a matter to be decided by the trial court on remand.\nFor the foregoing reasons, the judgment of the circuit court is reversed and the cause is remanded to that court for a new trial consistent with this opinion. Because the appellate court reversed the circuit court judgment but included directions in the judgment line of its opinion, that judgment is vacated.\nAppellate court judgment vacated; circuit court judgment reversed; cause remanded.\nJUSTICES BILANDIC, HEIPLE and FREEMAN took no part in the consideration or decision of this case.", "type": "majority", "author": "JUSTICE CLARK" } ], "attorneys": [ "Neil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley and Cecil A. Partee, State\u2019s Attorneys, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Thomas V. Gainer, Jr., Kevin Sweeney, David A. Cuomo, Renee Goldfarb and Randall Roberts, Assistant State\u2019s Attorneys, of counsel), for the People.", "Thomas D. Decker and Richard H. McLeese, of Thomas D. Decker & Associates, Ltd., of Chicago, for appellee." ], "corrections": "", "head_matter": "(No. 65792.\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. STEVEN PAUL LINSCOTT, Appellee.\nOpinion filed January 31, 1991.\nBILANDIC, HEIPLE and FREEMAN, JJ., took no part.\nNeil F. Hartigan, Attorney General, of Springfield, and Richard M. Daley and Cecil A. Partee, State\u2019s Attorneys, of Chicago (Terence M. Madsen, Assistant Attorney General, of Chicago, and Thomas V. Gainer, Jr., Kevin Sweeney, David A. Cuomo, Renee Goldfarb and Randall Roberts, Assistant State\u2019s Attorneys, of counsel), for the People.\nThomas D. Decker and Richard H. McLeese, of Thomas D. Decker & Associates, Ltd., of Chicago, for appellee." }, "file_name": "0022-01", "first_page_order": 32, "last_page_order": 52 }