People v. Jones ( 2015 )


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    2015 IL App (1st) 121016
                                                  No. 1-12-1016
    THIRD DIVISION
    March 31, 2015
    ______________________________________________________________________________
    IN THE
    APPELLATE COURT OF ILLINOIS
    FIRST DISTRICT
    ______________________________________________________________________________
    PEOPLE OF THE STATE OF ILLINOIS,                       )     Appeal from the Circuit Court
    )     of Cook County.
    Plaintiff-Appellee,                             )
    )     No. 08 CR 19575
    v.                                                     )
    )     The Honorable
    JOE JONES,                                             )     Jorge Luis Alonso,
    )     Judge Presiding.
    Defendant-Appellant.                            )
    ______________________________________________________________________________
    PRESIDING JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
    Justice Hyman concurred in the judgment and opinion.
    Justice Mason dissented, with opinion.
    OPINION
    ¶1          All expert opinion testimony requires an adequate foundation. The foundation requires a
    factual reason or basis for the expert's opinion. Where no factual basis is given, "trust me" is not
    enough.
    ¶2          The defendant was convicted in a jury trial of first-degree murder based on circumstantial
    evidence and the expert opinion testimony of a firearm/toolmark examiner who identified the
    bullet found by the victim as being fired from defendant's gun. Defendant argues that the court
    erred in admitting the firearm/toolmark examiner's expert opinion testimony. We agree and hold
    the court erred in allowing the testimony of the firearm/toolmark identification expert because
    1-12-1016
    the expert's testimony lacked an adequate foundation where the expert testified that he found
    "sufficient agreement" but did not testify to any facts that formed the bases or reasons for this
    ultimate opinion that the bullet matched defendant's gun.
    ¶3           We further hold that the expert's opinion testimony substantially prejudiced defendant, as
    it essentially placed the murder weapon in defendant's hands, and thus we reverse and remand for
    a new trial.
    ¶4           Defendant also argues that the evidence was insufficient to prove him guilty beyond a
    reasonable doubt, but due to our disposition we do not reach this issue.
    ¶5           Defendant further argues that the court also erred in not giving a second-degree murder
    instruction. We hold that defendant waived this argument by not including it in his post-trial
    motion, and the plain error exception to waiver does not apply here because, even if there were
    any error, such error was invited by defendant where he indicated to the court that he did not
    want the instruction.
    ¶6                                          BACKGROUND
    ¶7           Defendant, Joe Jones, was charged with the first-degree murder and armed robbery of his
    friend Ivory Anderson that occurred on September 12, 2008, near the intersection of Garfield
    Boulevard and Winchester Avenue in Chicago, Illinois. Defendant was charged via indictment
    with several counts of first-degree murder and two counts of armed robbery. The following facts
    are from the testimony at trial:
    ¶8           The day of the shooting, defendant was with Ivory Anderson and Valerie Myrick, known
    to her friends as "Red," at defendant's house on the 5600 block of South Seeley Avenue in
    Chicago, Illinois. Defendant was Valerie's boyfriend at the time, and Valerie and Ivory had been
    friends for about 20 years. Valerie drank and did drugs with both Ivory and defendant and
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    partied in defendants' basement. That night, the three of them were smoking crack cocaine and
    drinking alcohol.
    ¶9            Shortly before 9:30 p.m., Valerie, Ivory and defendant ran out of cocaine and Ivory
    suggested that they go buy more. Neither Valerie nor defendant had any money, so Ivory offered
    to go to his house to get some money. After Ivory got some money, the three began walking
    towards Winchester and 55th Street (Garfield Boulevard), where they planned to buy cocaine.
    Drugs were sold at a house on the corner of 55th Street and Winchester Avenue. Around the
    same time, Danies Escobar and her boyfriend Stanley Sparks were standing under the canopy of
    a currency exchange located nearby at 55th Street and Damen Avenue. Danies and Stanley
    earned their living by selling "cigarettes" at this location for fifty cents apiece. Danies had known
    Ivory for about 25 years, had been friends with Valerie for about 18 years, and had known
    defendant for about 7 or 8 years. Danies also partied in defendant's basement. Stanley also knew
    Valerie, Ivory and defendant and sometimes also partied in defendant's basement.
    ¶ 10          Danies and Stanley saw Valerie, Ivory and defendant approach them. Defendant was
    wearing a long blue denim jacket. As Valerie, Ivory and defendant approached, Valerie split and
    proceeded towards a gas station to get cigarettes and a cigarette lighter. Ivory gave Valerie a roll
    of quarters and Valerie went inside the gas station.
    ¶ 11          After Valerie went inside the gas station, Danies and Stanley heard gunshots. Danies
    heard four or five shots and that all the shots had the same sound. Stanley testified that he heard
    two shots, then two or three more, and stated that the shots all sounded alike to him, like they
    came from the same gun. To Stanley, the shots sounded like they came from a .38-caliber gun.
    Stanley testified that he may have told Detective Lewis that he heard two shots, a pause, and then
    four more shots.
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    ¶ 12           After hearing the gunshots, Danies and Stanley immediately went through the alley and
    headed towards 55th Street and Winchester Avenue, because Stanley's son frequented the area
    and they were concerned for him. There were no cars or people in the alley. At the end of the
    alley, they looked both ways and did not see anyone. When they got to the area, they looked
    around and did not see anyone at first. Danies saw two umbrellas and a lot of blood on the
    ground. Danies and Stanley were turning to walk away when they saw a body in between the
    garage at 5512 S. Winchester Avenue and the alley. Danies and Stanley both did not recognize
    who it was at first.
    ¶ 13           Meanwhile, Valerie came out of the gas station and did not see defendant and Ivory, who
    were supposed to wait for her at the corner. As she looked around for them, defendant came
    running towards her and said, "your friend just got shot." Defendant did not say how it happened
    or who shot Ivory. Valerie ran towards the other side of the boulevard to where Danies and
    Stanley had just discovered the body. Danies and Stanley were standing by the body but still did
    not recognize who it was. When Valerie arrived, she screamed, "Oh, hell, no, he shot Ivory…[.]"
    Valerie began screaming Ivory's name and telling him to "hold on." Danies then realized it was
    Ivory, saw blood around his head, and ran towards the gas station and found a police officer on
    55th Street, coming off Damen. She told the officer there was a man laying down at 55th and
    Winchester. Danies then went back to where Ivory was and stayed there until the police came.
    Stanley saw that Ivory's head wound "was really bad" and that Ivory's torso was covered in blood
    stains. Danies flagged down a marked police car on 55th Street, turning from Damen Avenue,
    and returned to where Ivory was.
    ¶ 14           When the police arrived on the scene, Danies gave officers her name and address and
    went to the home of Ivory's sister, Dorothy Hunter, to tell her what happened. Danies told
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    Dorothy and remained with her for about 15-20 minutes and then returned back to 55th and
    Damen. Dorothy then proceeded to 55th and Winchester. When she reached the alley, she saw
    Ivory's body covered with a white sheet and was told she could not walk closer because it was
    still a crime scene. A short time later, her nephew, who was a police officer arrived and
    identified the body as Ivory. Ivory Anderson was later pronounced dead from a gunshot wound
    to his back. The manner of death was ruled homicide.
    ¶ 15          After Valerie talked to the police at the scene, she saw defendant near 55th and Damen.
    They walked together towards the E & J Liquor Store. Valerie asked defendant what had
    happened, and defendant told her that "two guys came behind them and tried to stick them up."
    Defendant said that "one guy pulled a gun and started shooting" and so defendant "pulled his gun
    and was shooting back." Valerie asked defendant if he killed Ivory and defendant said, "no."
    Valerie and defendant went to Valerie's house and slept there that evening.
    ¶ 16          About 20 minutes after the shooting, at 55th and Damen, Danies and Stanley ran into
    Valerie and defendant by the bus stop in front of the gas station, near the E & J Liquor Store.
    Defendant was wearing a different jacket. When Danies and Stanley first saw defendant that
    night, he was wearing a long blue denim jacket, but when they saw him at the bus stop he was
    wearing a black leather jacket. Stanley did not think it was significant that defendant had
    changed his jacket, as it had been raining all day. Danies and Stanley stopped outside the liquor
    store on the sidewalk. Danies testified that Valerie was crying but defendant was not saying
    anything and was acting "jittery and nervous." Defendant started talking about a car accident
    where people were hurt at the bus stop in front of the gas station that took place 20 to 30 minutes
    after the shooting. Danies did not ask defendant about Ivory's shooting, and defendant did not
    talk about it or ask about it. Stanley testified it was not much of a conversation and they were
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    with defendant for two or three minutes. After a few minutes, Valeri and defendant went to the
    liquor store and Danies and Stanley left and slept at Valerie's house.
    ¶ 17             Chicago Police Department personnel arrived at the scene of the shooting at 5512 South
    Winchester to begin investigating and processing the scene. Detective John Halloran was
    assigned to the investigation, along with Detectives Garza, Gorman, Solecki, Butler, Cervin, and
    Wright, as well as investigator Joseph Bembynista. At this point it was heavily raining. After
    interviewing witnesses, the detectives attempted to locate defendant but were unsuccessful.
    Valerie talked to the police at the scene. Stanley told the police his name was Otis Brown
    because he had a warrant for child support.
    ¶ 18             Retired Investigator Joseph Bembynista testified to his processing of the crime scene.
    Investigator Bembynista testified that when he arrived it was pouring rain. Ivory was laying on a
    garage drive next to a blue Pontiac. The driveway where Ivory was lying was slightly slanted
    down toward the alley. Bembynista found two spent .380 caliber shell casings approximately 17
    feet southwest of the car, an overturned umbrella, a jacket and a sweater. The two cartridge cases
    were from different manufacturers: "Win" 1 and Remington. The investigators also found an
    overturned umbrella, a jacket and a sweater. Photographs were also taken of the scene, depicting
    blood splatter on a car door and on a panel of a garage door in the alley, People's Exhibit
    Numbers 12 and 15. Bembynista did not swab the blood on the garage door, the blood on the
    Pontiac, or the blood north of the car. Bembynista searched Ivory's body and found a fired bullet
    under this shirt. He did not find any money, wallet, or identification on Ivory.
    1
    According to the "Receipt for Physical Evidence" contained in the common law record, one
    cartridge case was a Winchester and the other a Remington.
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    ¶ 19            Detective Halloran also testified regarding the processing of the crime scene. He was
    assigned to the investigation, along with Detectives Garza, Gorman, Solecki, Butler, Cervin, and
    Wright. Detective Halloran testified that two .380 caliber shell casings were found in the street
    about 25 feet south of Ivory's body at the mouth of the alley.
    ¶ 20            Detective Halloran sent Detectives Solecki and Butler to the Cook County Medical
    Examiner's Office to observe Ivory's autopsy. When the bag containing Ivory's body was opened
    and personnel began removing Ivory's body, a fired bullet fell out. Detective Solecki found a $20
    bill, some change, keys, and a bottle of gin.
    ¶ 21            The bullet and the shell casings from the scene were sent to the Illinois State Crime
    Laboratory for testing.
    ¶ 22            Dr. James Filkins, a deputy Medical Examiner, reviewed Ivory's case, whose autopsy was
    originally performed by Dr. Michel Humilier. 2 Dr. Filkins reached an independent conclusion as
    to Ivory's cause of death to a reasonable degree of scientific certainty. Dr. Filkins opined that
    Ivory died from a single gunshot wound to the back, with damage to both his lungs and aorta.
    Ivory died from the shock of blood loss.
    ¶ 23            Danies testified that she did not see defendant with a gun on September 12. Before that
    date, she had seen him with a small black gun. Stanley had seen defendant carry a gun, a .380
    semi-automatic. Defendant had the gun for three or four weeks. Stanley thought defendant had
    the gun earlier in the day on the 12th, around noon, when they talked while sitting at the bus
    stop, but Stanley did not see it. Defendant said, "It is too hot out here, I am going to put this thing
    2
    Dr. Humilier had left the Medical Examiner's Office by the time of trial, and the State chose
    not to call him as a witness. No issue is raised on appeal concerning the testimony of Dr. Filkins
    testifying to his opinion on review of the original autopsy.
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    up." Defendant did not specifically refer to his gun, but Stanley thought that was what defendant
    was referring to. Stanley did not actually see the gun.
    ¶ 24          Two days after the shooting, on September 14, Valerie and defendant went to Dorothy
    Hunter's house to give Ivory's family their condolences. Dorothy Hunter was Ivory's older sister.
    Dorothy and six of her family members were there. Dorothy asked what happened to Ivory.
    Defendant told her that as he and Ivory were walking, two young men came up to them and said,
    "This is a stick-up, robbery, give me your money and wallet." Defendant described them as 19
    to 20 years old. One of them was light-skinned, tall, wore a black hoodie, and had a gun.
    Defendant told the family that his nephew knew who the gunman was but he did not go to the
    police. The situation at Dorothy's house became chaotic and the police were called. Defendant
    was arrested and taken to the police station.
    ¶ 25          On September 14, 2008, Detectives Halloran and Gorman interviewed defendant in a
    taped interview. People's Exhibit No. 52 was a redacted typed version of their interview, which
    was published to the jury. In the taped interview, defendant said he was at the E & J Liquor Store
    with a man named Al and Valerie when Ivory stopped by. Ivory told Valerie that he would be
    back at 9 p.m. Ivory came back before 9 p.m., and he, defendant, and Valerie walked over to
    defendant's house, where they talked, smoked rock (crack cocaine), and drank gin. The three of
    them left defendant's mother's house to walk Ivory to his house. Ivory was going to get some
    money to smoke some more crack cocaine. Defendant and Valerie waited on the corner while
    Ivory went home. Ivory did not want his sister to see them. When Ivory came out of his house,
    he said he had a little money. They all then went down Winchester Avenue towards 55th Street.
    Before they crossed the street, Valerie left to get some cigarettes from the gas station. They told
    her they would meet her. Valerie left, and Ivory and defendant crossed the street going south on
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    Winchester. They crossed 55th Street (Garfield Boulevard) and saw Danies's nephew selling
    drugs. Defendant described him as 19-20 years old, dark-complected, around 5'10" to 6' tall,
    heavy set, with bushy hair and wearing a blue hooded sweatshirt. Defendant asked whether there
    was anything going on, meaning did he have any drugs, and the nephew said no. There was a
    second individual at the top of the stairs of the house on the corner. This individual was slender,
    5'10" to 6'1", light-complected, and was wearing a grey hoodie.
    ¶ 26          Defendant said that a confrontation started on the sidewalk, by the alley. Defendant stated
    that the individual with the grey hoodie "ran up behind" Ivory and "snatched at his pocket" in a
    robbery attempt and that Ivory "swung his arm" and was "spun around." Defendant said that this
    individual then opened fire on Ivory, without any provocation. Defendant did not know if he
    heard two, three or four shots. Defendant denied that he had a weapon at the time Ivory was shot
    and denied shooting Ivory the night of September 12. Defendant told the detectives he had no
    reason to shoot Ivory.
    ¶ 27          On cross examination, Detective Halloran acknowledged that if the shooter had a
    revolver, casings would not be found, as revolvers do not eject the cartridge cases; they stay
    inside the cylinder of the gun.
    ¶ 28          On the early morning of September 16, at about 3 a.m., Detectives Halloran and Gorman
    returned to the crime scene to conduct another search. The detectives looked for bullet impacts,
    fired bullets, shell casings, or any other physical evidence. They found two more .380 shell
    casings in the street, in front of 5514 South Winchester Avenue, which was south of the alley
    and the location where the original shell casings were found. The shell casings were forwarded to
    the crime lab for testing. The police did not search north of the corner and did not search the
    parkway or Garfield Boulevard (55th Street).
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    ¶ 29          Later that afternoon, around 2:00 to 2:30 p.m., Detective Halloran and four other officers
    executed a search warrant for defendant's home at 5516 South Seeley. A Grendel .380-caliber
    semi-automatic pistol was found on a shelf in the basement storage room. The pistol contained
    one live round. It was sent to the crime lab for testing. Defendant's jacket was also inventoried
    but was never sent for testing.
    ¶ 30          Other detectives checked the businesses in the vicinity of the shooting for video
    surveillance footage. The video at the gas station showed Valerie inside the gas station at 9:40
    p.m. Detective Halloran also canvassed the neighborhood for other witnesses but did not find
    any.
    ¶ 31          An individual named Charles Pettis also testified. Pettis was arrested on September 17,
    2008 on a drug charge and was taken to the criminal court at 26th and California for a bond
    hearing. While in the receiving area he saw defendant in a cell. Pettis stated that he was friends
    with both defendant and Ivory and described his relationship with Ivory as "drinking buddies."
    Pettis asked defendant what happened to Ivory. According to Pettis, defendant denied shooting
    Ivory and told him that Ivory was shot by an individual who came up from behind a dumpster.
    Defendant said he fired one time at this individual. The individual shot at Ivory once and then
    three or four more times when Ivory was down. Defendant told Pettis that he went over to see if
    Ivory was still living and then took the money from his pocket and left. Three weeks after this
    conversation, the police picked up Pettis and questioned him. Pettis admitted that at the time of
    his arrest and conversation with defendant he used crack cocaine once a week and regularly
    drank a six-pack of beer a day but said the cocaine did not affect his memory. While he did not
    remember his arrest on September 18 or what he told police at that time, he did remember his
    conversation with defendant.
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    ¶ 32          Prior to trial, defendant moved to suppress his statements, arguing that the detectives
    ignored the Illinois statute requiring the videotaping of all interrogations and defendant's
    assertion of his constitutional rights. The trial court granted defendant's motion to suppress in
    part and suppressed the first unrecorded statement defendant made and the pre-Miranda
    summary of an earlier interview by Detective Halloran after he moved defendant to a room with
    recording equipment, ruling that recording was required. The court suppressed all statements
    made by defendant before Miranda warnings were given. The court allowed all of defendant's
    statements to Detective Halloran which followed defendant's Miranda rights. The court allowed
    the State to use the statement defendant made at 10:30 p.m. up until the interrogation by
    Detectives Lewis and Adams, but suppressed defendant's statements to Detectives Lewis and
    Adams because defendant made a clear invocation of his rights prior to that statement. We
    therefore do not consider defendant's statement to Detectives Lewis and Adams.
    ¶ 33          Defendant also filed a motion seeking to bar "misleading opinion statements by the
    prosecution concerning firearms identification," requesting that the State be barred from using
    phrases such as "to a reasonable degree of scientific certainty" or "to a reasonable degree of
    ballistic certainty." The State agreed that its firearms expert would not use such terms and that he
    would state his testimony was his "opinion" as to any identification of ballistics.
    ¶ 34          The State's firearms expert at trial was Justin Barr, a forensic scientist at the Illinois State
    Police laboratory who specialized in firearms identification. The trial court found Barr qualified
    to testify as an expert witness, without objection. Barr explained the basics of firearms
    identification to the jury, which is based on class characteristics of a weapon based on its caliber
    and other features determined prior to manufacture, such as rifling from the interior part of the
    barrel of a firearm, which creates lands and grooves and the direction of twists. Barr testified that
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    these striated markings within the barrel are impressed onto the bullet as it travels down the
    barrel. Individual characteristics are the irregularities or imperfections that are caused by the
    manufacturing process or "abuse of the tool." A particular firearm will have its own set of
    individual characteristics that set it apart from other firearms. The comparison of fired test
    bullets from a particular firearm is made through a comparison microscope, which is "basically
    two compound microscopes connected by an optical bridge where two items can be seen in the
    same field of view." In making the comparison, he looks for striations, or scratch markings, on
    the bullet, "individual characteristics, or the overall pattern" that is "based on class and individual
    characteristics." Barr testified that "[t]he basis for an identification is sufficient agreement of
    class and individual characteristics." Barr testified that the question of what is "sufficient
    agreement" between the items is based on his training and experience. Barr testified that he does
    not use a national standard, and that examinations at the Illinois State Police Laboratory are "just
    based on our training and experience, which is verified by another examiner," and that there is no
    Illinois State Police standard.
    ¶ 35          Barr testified that he received several pieces of evidence in this case, including the fired
    bullet recovered from Ivory's body, the Grendel Model P12 .380-caliber pistol recovered from
    defendant's home with one magazine and unfired cartridge, and the four fired cartridge casings
    recovered from the scene of the shooting. Barr examined the gun and determined that the rifling
    inside was "six right," meaning there were "six lands and grooves in the barrel with a righthand
    twist." Barr testified these were class characteristics. Barr did not testify to any individual
    characteristics of the gun. Then Barr fired the firearm to determine if it was in operable condition
    and fired two test shots using two unfired cartridges from the lab. He fired the test shots through
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    the gun into a water recovery tank. The test bullets and their cartridge casings are also the control
    group used to compare to the recovered bullet and casings.
    ¶ 36          Barr then compared those test bullets to the bullet recovered from Ivory's body and the
    test casings to the casings that were recovered from the scene. In making the comparison, Barr
    used a comparison microscope with two stages, one on the right and one on the left, and through
    the oculars he sees both sides to compare. Barr determined that there was sufficient agreement
    between the bullet recovered from Ivory's body and the test bullets fired from defendant's gun
    and that the bullet recovered from Ivory's body was fired from defendant's gun. Barr also
    compared the four cartridge casings under the comparison microscope and determined that they
    also were fired from defendant's gun.
    ¶ 37          Following Barr's testimony on direct examination, defense counsel made an objection on
    "foundation" that was "based on Safford [People v. Safford, 
    392 Ill. App. 3d 212
    (2009)] in that
    we don't believe that a foundation has been properly laid or discovery properly given as to the
    specifics of the striations that this examiner used to come to his conclusion." The State
    responded that this area of inquiry was proper for cross-examination. The trial court overruled
    the objection.
    ¶ 38          On cross examination, Barr explained that at the Illinois State Police Crime lab, they
    "don't really count the number of lines or how many things were in agreement, but it is an overall
    pattern based on class and individual characteristics." Barr testified that "there is no set number
    of how many lines" he was looking for and the striations "don't all have to line up," and that
    examiners at the Illinois State Police Laboratory "don't count them." Barr also testified that he
    does not look at every single line. Barr testified that the standard used to make the determination
    whether there was an identification is "sufficient agreement" and that this standard is commonly
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    accepted in his field. Barr testified there is no specific standard as to the number of markings
    which have to match; each examiner decides on his or her own what is sufficient agreement. Barr
    testified that the question of what constitutes "sufficient agreement" between the two bullets for
    comparison is based on his training and experience. Barr further testified that he heard of the
    practices of "consecutive matching stria[tions]" and line counting, but those practices are not
    used in the Illinois State Police Laboratory. Barr was not aware of the quantifiable method,
    which uses a number standard.
    ¶ 39          Barr also testified that the Illinois State Police Laboratory uses a verification system,
    where each examiner asks an available co-worker to verify the conclusion. Barr concluded that
    the recovered fired bullet was fired from defendant's pistol. Barr then lined up his microscope at
    the index mark and asked another technician to verify it. Barr told the other technician it was an
    identification, and the other technician agreed with Barr's findings. Barr did not recall any other
    technician ever disagreeing with him or him disagreeing with any other technician. Barr knew
    there had been disagreements in the laboratory but was not sure if they kept track of them. Barr
    further explained there is no set procedure for choosing a verifier. The verifier is free to make his
    own determination.
    ¶ 40          On cross-examination Barr testified that he did not know specifics of the gun
    manufacturing process, how the lands and grooves were made within a gun, and whether all guns
    produced by a manufacturer on the same day had the same lands and grooves. On redirect, Barr
    clarified that all guns made on a particular day may have the same class characteristics.
    ¶ 41          On redirect, Barr agreed that he uses methods and procedures commonly accepted in the
    area of firearms examination to determine whether a certain piece of evidence was fired from a
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    particular firearm, but then it is his determination if a sufficient agreement of class and individual
    characteristic are present.
    ¶ 42             At the close of all the evidence, defendant's motion for a directed verdict was denied.
    ¶ 43             Defense counsel requested an instruction on self defense, the "justified use of force"
    instruction, which was granted over the State's objection. At the final jury instruction conference,
    defendant informed the court that he did not want an instruction on the lesser offense of second-
    degree murder. The State nolled the felony murder and armed robbery counts.
    ¶ 44             During jury deliberations, the jury sent the following note: "We want to see [defendant's]
    interragation [sic] video." The video was played for the jury in the courtroom by the sheriff.
    After further deliberation, the jury returned a verdict finding defendant guilty of murder, finding
    that defendant personally discharged a firearm that proximately caused the murder of another
    person.
    ¶ 45             Defendant filed a motion for a new trial, arguing that: (1) he was not proven guilty
    beyond a reasonable doubt; (2) the court erred in denying his pre-trial motion to suppress
    statements; (3) the court erred in denying his pre-trial motion to exclude evidence of the gun and
    bullet identification evidence; (4) the court erred in not excusing a certain juror, who had been
    recalled to work; (5) the court erred in denying the defendant's objection to the expert opinion
    conclusions of forensic scientist Just Barr on the ground that a proper foundation for his opinion
    was not laid; (6) the court erred in denying defendant's motion to exclude the videotape of the
    defendant's interrogation when the State had not timely redacted it pursuant to court order,
    causing the trial to be unreasonably delayed; (7) the court erred in allowing Dr. James Filkins to
    testify as a substitute medical examiner, in violation of defendant's Sixth Amendment rights; (8)
    the defendant did not receive a fair and impartial trial; (9) the court erred in overruling the
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    defendant's motion for a directed verdict at the end of the case; and (10) the Assistant State's
    Attorney made burden-shifting statements in closing argument. Defendant did not include any
    argument concerning jury instructions. The trial court held a hearing and then denied the motion.
    ¶ 46          At sentencing, the court heard victim impact statements from the following individuals:
    Brenda A. Walls and Erma Anderson, Ivory's daughters; James Deans, Ivory's brother; Dorothy
    Hunter, Ivory's sister; and Linda Hunter, Ivory's niece. Following arguments in aggravation and
    mitigation and defendant's statement that he fired in self defense, the trial court imposed a
    sentence of 55 years: 30 years for first-degree murder; and 25 years for the firearm sentencing
    enhancement. Defendant appealed.
    ¶ 47                                              ANALYSIS
    ¶ 48          Defendant argues the following: (1) the court erred in admitting Barr's expert testimony
    concerning the firearm identification; (2) his guilt was not proven beyond a reasonable doubt;
    and (3) the court erred in failing to give a second-degree murder instruction.
    ¶ 49                         I. Expert Firearm Identification Opinion Testimony:
    "Trust Me" is Not Enough
    ¶ 50          Defendant first argues that the court erred in admitting the expert opinion testimony of
    the State's firearm/toolmark expert examiner, Justin Barr, and that this error was substantial,
    affected the outcome of his trial, and denied him a fair trial. We agree.
    ¶ 51                        A. Requirements for Admission of Expert Testimony:
    All Expert Testimony Must Lay an Adequate Foundation
    ¶ 52          Expert testimony is admissible if the proffered expert is qualified, a foundation is laid
    establishing a basis for the expert's opinions, and the testimony would assist the trier of fact in
    understanding the evidence. Todd W. Musburger, Ltd. v. Meier, 
    394 Ill. App. 3d 781
    , 800 (2009).
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    First, the expert must be found qualified to testify as an expert witness. "Expert testimony is
    admissible if the proffered expert is qualified by knowledge, skill, experience, training, or
    education, and the testimony will assist the trier of fact in understanding the evidence." Snelson
    v. Kamm, 
    204 Ill. 2d 1
    , 24 (2003); Reed v. Jackson Park Hospital Foundation, 
    325 Ill. App. 3d 835
    , 842 (2001). "The indicia of expertise is not a given level of academic qualification, but
    whether the expert has knowledge and experience beyond the average citizen which would assist
    the jury in evaluating the evidence." People v. Sims, 
    247 Ill. App. 3d 670
    , 675 (1993). "Whether
    the specialized knowledge is acquired through education, training, experience, or a combination
    of each, the witness may testify if he possesses such knowledge." 
    Id. Thus, an
    expert may be
    qualified on the basis of experience alone. 
    Sims, 247 Ill. App. 3d at 675
    .
    ¶ 53          Second, if the expert opinion concerns scientific evidence, there must be a foundation
    laid for the scientific principle or methodology used by the expert in arriving at his or her
    opinion. Illinois follows the standard under Frye v. United States, 
    293 F. 1013
    (D.C.Cir.1923)
    for the admission of scientific evidence. See In re Commitment of Simons, 
    213 Ill. 2d 523
    , 529-
    31 (2004). In determining whether evidence is scientific, a court looks to the methodology
    employed. See In re Marriage of Alexander, 
    368 Ill. App. 3d 192
    , 197 (2006). The proponent of
    evidence subject to the Frye test can prove general acceptance through scientific publications,
    prior judicial decisions, practical applications, as well as the testimony of scientists as to the
    attitudes of their fellow scientists. People v. McKown, 
    226 Ill. 2d 245
    , 254 (2007) (court may
    consider cases from Illinois and other jurisdictions as well as technical writings). No additional
    inquiry into the validity or reliability of the technique or methodology is necessary. In re
    Commitment of Sandry, 
    367 Ill. App. 3d 949
    , 965-66, 969 (2006) (noting that Illinois does not
    follow a "'Frye plus reliability' test"; once the evidence is admitted, reliability is assumed). But
    -17-
    1-12-1016
    Frye applies only to scientific methodologies that are new or novel. People v. McKown, 
    226 Ill. 2d
    245, 254 (2007). Firearm and toolmark identification is not new or novel, and Illinois courts
    have "uniformly" concluded that toolmark and firearms identification methodology is generally
    accepted and admissible at trial. Robinson, 
    2013 IL App (1st) 102476
    , ¶ 91.
    ¶ 54          Third, all expert testimony, whether scientific or not, must have an adequate foundation
    in order to be admissible. " '[T]he admission of an expert's testimony requires the proponent to
    lay an adequate foundation establishing that the information upon which the expert bases his
    opinion is reliable.' " People v. Safford, 
    392 Ill. App. 3d 212
    , 221 (2009) (quoting Hiscott v.
    Peters, 
    324 Ill. App. 3d 114
    , 122 (2001), citing Soto v. Gaytan, 
    313 Ill. App. 3d 137
    , 146
    (2000)). " 'To lay an adequate foundation for expert testimony, it must be shown that the facts or
    data relied upon by the expert are of a type reasonably relied upon by [experts] in that particular
    field in forming opinions or inferences.' " People v. Smith, 
    2012 IL App (1st) 102354
    , ¶ 70
    (citing People v. Contreras, 
    246 Ill. App. 3d 502
    , 510 (1993)). This foundational requirement is
    required for the admission of all expert opinions. "It is the function of the trial court to determine
    whether the foundational requirements have been met." 
    Safford, 392 Ill. App. 3d at 221
    . The
    issue of the admission of expert testimony is a matter within the sound discretion of the circuit
    court. Snelson v. Kamm, 
    204 Ill. 2d 1
    , 24 (2003). " '[E]ven where an abuse of discretion has
    occurred, it will not warrant reversal of the judgment unless the record indicates the existence of
    substantial prejudice affecting the outcome of the trial. [Citation.]' " People v. Jackson, 
    232 Ill. 2d
    246, 265 (2009) (quoting In re Leona W., 
    228 Ill. 2d 439
    , 460 (2008)). This determination is a
    question of law which is reviewed de novo. 
    Safford, 392 Ill. App. 3d at 221
    .
    -18-
    1-12-1016
    ¶ 55                  B. It is Inappropriate to Challenge an Expert's Conclusion As Lacking General
    Acceptance Under Frye Where the Expert Employed a Generally Accepted Methodology
    But His Opinion Lacked Foundation. The Appropriate Challenge is to Foundation.
    ¶ 56          In this case, Barr was qualified as an expert witness, without objection, and so Barr's
    qualification as an expert witness is not at issue.
    ¶ 57          Defendant argues that Barr's opinion lacked adequate foundation where he "did not
    testify to the specifics of the striations that he used to come to his conclusion," and that the
    identification procedure testified to and used by Barr in this case "calls into question whether his
    identification procedure would be generally accepted in the relevant scientific and legal
    communities." As part of defendant's argument that Barr's testimony lacked foundation,
    defendant also argues in his brief on appeal that firearm/toolmark identification is not
    "scientific." Defendant argues that "[f]or the past eighty-plus years, the Illinois courts have
    assumed that the firearms identification technique used by the Illinois State Police (and other
    police departments) is a scientific method utilizing accepted standards in the particular field for
    judging the degree of confidence in the expert's conclusion." Defendant relies on a report issued
    in February 2009 by the National Academy of Sciences, authored by its Committee on
    Identifying the Needs of the Forensic Science Community of the National Research Council
    entitled "Strengthening Forensic Science in the United States: A Path Forward" (2009) ("NRC
    Report"). 3 Relying on the NRC Report, defendant further argues that "[a]s it stands today,
    firearms identification is 'scientific' only to the extent that it is performed by individuals
    employed as forensic scientists."
    3
    The NRC Report is publicly available on the internet at
    https://www.ncjrs.gov/pdffiles1/nij/grants/228091.pdf.
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    ¶ 58          Defendant thus takes issue with whether Barr's methodology in this case is "generally
    accepted" and also takes issue with the scientific methodology of firearm/toolmark identification
    itself and disputes its reliability, as well as challenging the foundation of Barr's ultimate expert
    opinion.
    ¶ 59          While it is tempting to think of these types of arguments as a Frye question, Frye is only
    for new or novel scientific methodologies. There is nothing new or novel about using a
    comparison microscope to compare two bullets for firearm/toolmark comparison and
    identification. To the extent defendant urges us to declare this particular expert's testimony with
    zero individual factors identified by his firearm/toolmark comparison as a new or novel science
    or lacking general acceptance, we decline. This expert's zero-based testimony was the result of
    either the shortcut direct examination by the State or poor testimony by the expert, which failed
    to lay an adequate foundation. Litigants have attempted to attack expert opinion testimony on the
    ground that the basis is not reasonably relied upon by experts in the field or lacks general
    acceptance, under a Frye-type challenge. But the Illinois Supreme Court has "reiterate[d] that a
    Frye admissibility challenge is not the proper vehicle to question the conclusions an examiner
    reaches in a particular case." People v. Luna, 2013 IL App (1st) 072253, ¶ 72. The appropriate
    challenge is to foundation, which was the objection made by defendant at trial.
    ¶ 60                       C. We Will Not Consider Forfeited Objection or Issues
    or Evidence That Was Not Introduced At Trial
    ¶ 61          Further, objections regarding Barr's particular methodology in this case and regarding the
    general acceptance of the methodology of firearm/toolmark identification itself were not made at
    trial. Defendant objected only on the basis of "foundation *** based on Safford [People v.
    Safford, 
    392 Ill. App. 3d 212
    (2009)] in that we don't believe that a foundation has been properly
    -20-
    1-12-1016
    laid or discovery properly given as to the specifics of the striations that this examiner used to
    come to his conclusion." We do not read this specific objection to include a further Frye
    objection to Barr's specific methodology lacking general acceptance or to the general acceptance
    of the general methodology employed in firearm/toolmark identification. Though defendant
    urged us to consider these arguments at oral argument of this case, such objections were not
    made below at trial and thus these arguments were forfeited, as defendant recognized at oral
    argument. Any objection to Barr's methodology as being new or novel or not being generally
    accepted under Frye was forfeited and we will not consider such argument. See People v. Enoch,
    
    122 Ill. 2d 176
    , 186-87 (1988); People v. Nieves, 
    192 Ill. 2d 487
    , 503 (2000); Ill. S. Ct. R.
    341(h)(7) (eff. July 1, 2008).
    ¶ 62          We also disagree with the dissent's speculations about the strength of Barr's opinion
    based on the alleged fact that the defense inadvertently included a copy of an expert report it did
    not use at trial. We note defendant's concern at oral argument with unconstitutional burden-
    shifting. This expert opinion was not admitted at trial and is not part of the record of the official
    proceedings at trial. This court will not consider evidence that is not part of the trial record or
    presented to the trial judge. See Ruiz v. Walker, 
    386 Ill. App. 3d 1080
    , 1081 (2008). See also
    People v. Williams, 
    200 Ill. App. 3d 503
    , 513 (1990) (police laboratory report could not be
    considered on appeal in a supplemental record where that evidence was not admitted into
    evidence at trial). The report is not part of the trial record and has no bearing on the adequacy on
    the foundation of Barr's expert opinion. We therefore do not rely on any mention of this report in
    our holding.
    ¶ 63               D. Whether It is a Hard "Science" or Not, Firearm/Toolmark Identification is a
    Useful Forensic Aid and the Methodology in Firearm/Toolmark Identification
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    Has Long Been, and Continues to Be, Generally Accepted in Illinois
    ¶ 64          "The determination of the reliability of an expert's methodology is naturally subsumed by
    the inquiry into whether it is generally accepted in the scientific community." People v. Nelson,
    
    235 Ill. 2d 386
    , 431 (2009) (citing Donaldson v. Central Illinois Public Service Co., 
    199 Ill. 2d 63
    , 80-81 (2002). A particular methodology is generally accepted if "the underlying method used
    to generate an expert's opinion is reasonably relied upon by experts in the relevant field." In re
    Commitment of Simons, 
    213 Ill. 2d 523
    , 529-30 (2004).
    ¶ 65          As to the methodology itself, Illinois has long recognized the admissibility of
    firearm/toolmark comparison and identification. See People v. Fisher, 
    340 Ill. 216
    , 238-39
    (1930) (first admitted firearm/toolmark comparison expert testimony); People v. O'Neal, 118 Ill.
    App. 2d 116 (1969); People v. McKinnie, 
    18 Ill. App. 3d 1012
    (1974); People v. Miller, 31 Ill.
    App. 3d 436, 446-47 (1975); People v. Singletary, 
    73 Ill. App. 3d 239
    , 248-49 (1979). We have
    recently reiterated that expert firearm/toolmark identification testimony has been generally
    admissible in Illinois courts for decades and there is no split of authority in Illinois on this issue.
    Robinson, 
    2013 IL App (1st) 102476
    at ¶ 80.
    ¶ 66          We have further specifically reiterated that we will continue to analyze firearm/toolmark
    comparison and identification expert testimony as one involving scientific evidence. See
    Robinson, 
    2013 IL App (1st) 102476
    at ¶ 67. In Robinson, we held that while "federal and state
    courts have had occasion to revisit the admission of expert testimony based on toolmark and
    firearms identification methodology," the courts have "uniformly" concluded that toolmark and
    firearms identification methodology is generally accepted and admissible at trial. Robinson, 
    2013 IL App (1st) 102476
    at ¶ 91.
    -22-
    1-12-1016
    ¶ 67          The NRC Report relied upon by defendant to challenge the discipline of firearm/toolmark
    identification was authorized by Congress and summarizes the state of forensic science in the
    United States. The report includes a helpful description of how toolmarks are created which aids
    our analysis and is helpful in explaining this forensic discipline. "Toolmarks are generated when
    a hard object (tool) comes into contact with a relatively softer object." NRC Report at 150.
    Toolmarks associated with a firearm may occur in the commission of a crime when "the internal
    parts of a firearm make contact with the brass and lead [or other materials] that comprise
    ammunition." 
    Id. "The manufacture
    and use of firearms produces an extensive set of specialized
    toolmarks." 
    Id. at 150-51.
    ¶ 68          The NRC Report was critical of all disciplines in forensic science as generally not being
    "scientific" enough, except DNA analysis. The NRC Report states:
    "With the exception of nuclear DNA analysis, however, no forensic method has been
    rigorously shown to have the capacity to consistently, and with a high degree of certainty,
    demonstrate a connection between evidence and a specific individual or source." NRC
    Report at 7.
    ¶ 69          The NRC Report goes on to further explain:
    "In terms of scientific basis, the analytically based disciplines generally hold a notable
    edge over disciplines based on expert interpretation. But there are important variations
    among the disciplines relying on expert interpretation. For example, there are more
    established protocols and available research for fingerprint analysis than for the analysis
    of bite marks. There also are significant variations within each discipline. For example,
    not all fingerprint evidence is equally good, because the true value of the evidence is
    determined by the quality of the latent fingerprint image. These disparities between and
    -23-
    1-12-1016
    within the forensic science disciplines highlight a major problem in the forensic science
    community: The simple reality is that the interpretation of forensic evidence is not always
    based on scientific studies to determine its validity. This is a serious problem." NRC
    Report at 7-8.
    ¶ 70          The NRC Report's critique of firearm/toolmark identification specifically was that "the
    final determination of a match is always done through direct physical comparison of the evidence
    by a firearms examiner, not the computer analysis of images," and the examiner makes "a
    subjective decision based on unarticulated standards and no statistical foundation for estimation
    of error rates." NRC Report at 153-54. Thus, the National Academy of Sciences committee feels
    that human expert interpretations not based on strictly "scientific" studies and "computer
    analysis" to establish their validity pose a "serious problem."
    ¶ 71          We note that defendants in other reported cases have also relied on the NRC Report in an
    attempt to undermine the legitimacy of firearm/toolmark examination in criminal cases and
    reverse convictions against them based on such evidence. See Robinson, 
    2013 IL App (1st) 102476
    at ¶ 90. But to argue that forensic evidence must have the certainty of a laboratory test or
    computer analysis and results that are independent of any human interpretation such as DNA
    evidence in order to be admissible as "scientific" would wipe out the majority of forensic
    evidence except DNA and perhaps tests for blood typing and tests for the presence or absence of
    gun powder residue.
    ¶ 72          The reality in forensic science and its application to criminal cases and our justice system
    is that these human expert interpretations are highly probative and aid triers of fact and the police
    in not only convicting but also excluding suspects as perpetrators of crimes. The types of
    forensic trace evidence comparison methods that are admissible in Illinois are varied and include,
    -24-
    1-12-1016
    for example, hand writing comparison, blood spatter analysis, bitemark identification, shoe and
    tire impressions, fingerprints, gunshot residue and patterns, forensic botany (analysis of plant
    material found in connection with a crime), forensic pathology, paint analysis, and hair and fiber
    comparison. See, e.g., People v. Knox, 
    121 Ill. App. 3d 579
    , 583-84 (1984) (first Illinois case
    admitting expert testimony regarding blood spatter evidence; held the record established an
    adequate foundation for such expert testimony and that the technique used by the officer is
    essentially one of pattern recognition and reconstruction, rejecting the defendant's argument that
    this area of expertise requires substantial training in physics); People v. Davis, 
    304 Ill. App. 3d 427
    , 437 (1999) (holding that the method employed to identify lip prints, a side-by-side
    comparison, is reliable where the experts testified that the method they employed to identify the
    lip print was the same as the well-accepted method of fingerprint identification, which is
    accepted by the forensic science community, the FBI, and the Illinois State Police); People v.
    Shaw, 
    278 Ill. App. 3d 939
    , 948 (1996) ("Because of the unique quality of an individual's
    dentition, testimony concerning bite mark identification is admissible in Illinois."); People v.
    Mackins, 
    17 Ill. App. 3d 24
    , 38 (1974) (affirmed admission of expert opinion evidence regarding
    scientific analysis of paint samples and of fibers found on defendants' clothing and fibers found
    on victim's clothing in accordance with morphological characteristics). These pieces of forensic
    evidence have proven capable of comparison and identification to specific individuals or sources,
    even though they do involve human analysis by experts and, necessarily, some subjective
    interpretation, and have long been upheld as admissible where the expert lays a proper
    foundation concerning the bases for his or her opinion.
    ¶ 73          To the extent that the NRC Report questions the "scientific" basis for firearm/toolmark
    identification, it may indeed be more appropriate to view the discipline of firearm/toolmark
    -25-
    1-12-1016
    identification as one that is forensic, mechanical or technical and specialized, yet still requiring
    expert testimony, instead of being deemed a "science." The fact that this field has been termed a
    science may be more a reflection of antiquated notions of anything new and novel as a "science."
    But if it is true that the discipline of firearm/toolmark examination is not "scientific," all that
    would mean is that any expert opinion in this area is not subject to the Frye admissibility
    standard in the first place. See People v. Shinohara, 
    375 Ill. App. 3d 85
    , 111 (2007) (holding that
    if an expert's opinion is derived solely from his or her observations and experiences, the opinion
    is generally not considered to be scientific evidence for purposes of the Frye standard of
    admissibility; on the other hand, if the expert's opinion is derived from a the scientific method or
    particular scientific methodology, such as the application of scientific principles or the use of
    other literature or studies, then the opinion is generally considered scientific). Such expert
    opinions would still, however, be admissible through general expert testimony, subject to the
    general foundation requirements as a safeguard.
    ¶ 74          The NRC Report does not change the long-standing fundamental recognition in Illinois
    that the facts relied upon by experts in toolmark and firearm comparison are of a type reasonably
    relied upon by experts in the field in order to establish a proper foundation. Questioning whether
    the discipline of firearm/toolmark examination is deemed a strict "science" or not does not
    diminish its value, nor does it overturn Illinois's long-standing acceptance of the facts relied upon
    by such experts as facts that are reasonably relied upon in this discipline.
    ¶ 75          The NRC Report provides no basis for any change in Illinois law. We have held that "[i]t
    is not the purview of the courts to exclude entire fields of study from the general acceptance test
    because those sciences are 'softer,' while allowing experts in those fields to present opinions that
    create a perception of scientific certainty. Creating these exceptions opens the justice system to
    -26-
    1-12-1016
    abuse." In re Detention of New, 
    2013 IL App (1st) 111556
    , ¶ 57, aff'd, 
    2014 IL 116306
    . Our
    jurisprudence and justice system continue to contain safeguards, including the role of the trial
    court in determining whether foundational requirements for the expert opinion are met, as well as
    the defense's opportunity to vigorously cross-examine the experts.
    ¶ 76                  E. Foundation For An Expert's Opinion Testimony is Necessary for Admission;
    Foundation Is Not An Issue Regarding Merely the Weight of the Testimony
    ¶ 77          Nevertheless, the fact that the methodology of firearm/toolmark identification is
    generally accepted, and that Barr testified to how he followed the methodology, does not remove
    the further requirement of laying a proper foundation for the expert opinion. We reiterate that the
    issue is not the foundation for qualifying Barr to testify as an expert witness or even the
    foundation he laid for his methodology but, rather, the foundation for his subsequent expert
    opinion testimony. The question is whether Barr's testimony meets foundational requirements for
    the admission of expert testimony generally. The proponent must " 'lay an adequate foundation
    establishing that the information upon which the expert bases his opinion is reliable.' "
    (Emphasis added.) 
    Safford, 392 Ill. App. 3d at 221
    (quoting 
    Peters, 324 Ill. App. 3d at 122
    ,
    citing 
    Soto, 313 Ill. App. 3d at 146
    ). Part of the general foundation requirement for expert
    testimony is that " 'it must be shown that the facts or data relied upon by the expert are of a type
    reasonably relied upon by [experts] in that particular field in forming opinions or inferences.' "
    (Emphasis added.) People v. Smith, 
    2012 IL App (1st) 102354
    , ¶ 70 (citing People v. Contreras,
    
    246 Ill. App. 3d 502
    , 510 (1993)). This foundational requirement is a prerequisite for all expert
    opinions, whether deemed "scientific" or not. This is an admissibility issue, not merely weight.
    Only after a proper foundation has been laid does the expert's testimony become a matter of
    weight to be assigned by the jury. "After proper foundation has been laid, 'the weight to be
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    1-12-1016
    assigned to that testimony is for the jury to determine.' " (Emphasis added.) Baley v. Federal
    Signal Corp., 2012 IL App (1st) 093312, ¶ 74 (citing Fronabarger v. Burns, 
    385 Ill. App. 3d 560
    , 565 (2008)). The concern is whether the defendant's right to a fair trial was impacted by the
    admission of an expert's testimony that lacked foundation. 
    Safford, 392 Ill. App. 3d at 223
    (citing
    People v. Brown, 
    57 Ill. App. 3d 528
    , 531 (1978)).
    ¶ 78                       F. "Take My Word For It" or "Trust Me" Is Not Enough:
    Barr Did Not Lay An Adequate Foundation For His Expert Opinion
    That the Bullet Recovered From the Victim Matched Defendant's Gun Where
    He Did Not Testify to Any Individual Characteristics of the Firearm and the Bullet
    Or Give Any Reason For His Expert Opinion That There Was a Match
    ¶ 79          Barr did not point to any information upon which he based his opinion that the recovered
    bullet matched defendant's gun. Class and individual striations and unique toolmarks constitute
    the information of a type reasonably relied upon by experts in the field of firearm/toolmark
    comparison. Barr explained that class characteristics result from the design of a firearm prior to
    manufacture and include the rifling of the inside of the barrel of the gun, while individual
    characteristics "are the irregularities or imperfections that are caused by the manufacturing
    process due to use or abuse of the tool." Barr testified that a particular firearm will have its own
    set of individual characteristics that set it apart from other firearms. Yet, Barr testified that "[t]he
    basis for an identification is sufficient agreement of class and individual characteristics."
    (Emphasis added.) Barr testified, "We don't really count the number of lines or how many things
    are in agreement, but it is an overall pattern based on class and individual characteristics."
    (Emphasis added.)
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    ¶ 80          But Barr only testified to the class characteristics of defendant's gun, a Grendel .38-
    caliber pistol, which was 6 striations to the right. Barr did not testify to any individual
    characteristics of defendant's gun. In addition, Barr did not testify to any characteristics of the
    bullet recovered from Ivory, either class characteristics or individual characteristics. Barr was
    asked about the individual characteristics of the bullet recovered from Ivory, "Were you able to
    determine the individual characteristics of that bullet?" Barr replied, "Could you be a little more
    specific as to what you mean by that?" The prosecutor then stated, "We will come back to the
    bullet," but never did. Barr testified that he determined that the firearm and the recovered bullet
    were "of the same class characteristics," but did not testify to any individual characteristics and
    the prosecutor never returned to the line of questioning regarding the individual characteristics of
    the recovered bullet. Barr did not testify to even a single individual characteristic or striation or
    marking as a point of comparison on the bullet recovered from Ivory to the test bullets fired from
    defendant's gun. He did not testify to even one. Barr merely testified that there was "sufficient
    agreement" between the bullet and defendant's gun, and did not point to even a single piece of
    information to explain. When asked specifically about the striations on the recovered bullet, Barr
    testified, "They don't all have to line up if that is what you are asking. We are looking for an
    agreement, and there is no set number." Even upon vigorous cross-examination, Barr's testimony
    focused on the "sufficient agreement" standard and the fact that under this standard there is no
    requirement for a minimum number of striation matches but, again, he did not testify to any
    specific markings or individual characteristics for comparison. Barr gave no reason at all to
    support his expert opinion that there was sufficient agreement and a match between the bullet
    recovered by the victim and defendant's gun.
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    ¶ 81          This case is indeed markedly similar to Safford, as defendant argues. Although Safford
    was a fingerprint case, the comparison of unique points and marking is similar to the comparison
    in firearm/toolmark identification. In Safford, no points of comparison were ever identified by
    the fingerprint expert and there was no testimony by the expert as to how he arrived at his
    conclusion that the latent palm print matched defendant's palm print. 
    Safford, 392 Ill. App. 3d at 221
    . We therefore agreed with the defendant's argument that the expert's testimony amounted to
    no more than "take my word for it." 
    Safford, 392 Ill. App. 3d at 224
    . We held that absent any
    explanation that established the legal foundation for the expert's ultimate opinion, the admission
    of his opinion was reversible error. 
    Safford, 392 Ill. App. 3d at 228
    , 230-31. We further held that
    "[w]hile the paucity of points of similarity may go to the weight of the evidence rather than
    admissibility [citation], as the paucity approaches zero, our concern is no longer with weight but
    with admissibility." 
    Safford, 392 Ill. App. 3d at 225
    .
    ¶ 82          Here, just as in Safford, that is precisely the number of points of comparison we have:
    zero. In this case, there literally was no foundation for Barr's expert opinion testimony, just as in
    Safford, where no points of comparison were ever identified.
    ¶ 83          The State argues that this case is distinguishable from Safford where Barr "testified to the
    exact basis of his opinion, which was 'sufficient agreement.' " But "sufficient agreement" is the
    generally accepted standard and constituted Barr's ultimate opinion.4 "Sufficient agreement" is
    4
    We note that the generally accepted standard of "sufficient agreement" testified to by Barr is
    the same as the theory of identification promulgated by the Association of Firearms and Tool
    Mark Examiners ("AFTE"): "sufficient agreement." See AFTE Criteria for Identification
    Committee, "Theory of Identification, Range of Striae Comparison Reports and Modified
    Glossary Definitions – an AFTE Criteria for Identification Committee Report," AFTE Journal,
    Vol. 24, No. 2, April 1992, 337. But because Barr did not specifically identify the AFTE theory
    as the standard he followed we do not rely on it.
    -30-
    1-12-1016
    not the factual basis of the opinion. There is nothing "exact" about merely concluding there was
    "sufficient agreement" without any explanation of any facts leading to that conclusion.
    ¶ 84          The State also argues that this case is distinguishable from Safford where defense counsel
    conducted a lengthy cross-examination and that "[i]f anything, defendant here benefitted from
    any lack of specificity in Barr's testimony, shaping his cross-examination to portray the
    'sufficient agreement' standard as sloppy, subjective, and unscientific." We disagree that
    defendant benefitted in any way from Barr's lack of foundation for his opinion. As we noted in
    Safford, expert testimony where no explanation is provided for how the expert reached his or her
    opinion deprives the defendant of any meaningful means to challenge the conclusion of the
    expert on cross-examination:
    "Our problem with the expert testimony here is that [the expert] claimed to base his
    opinion 'upon facts personally known to him, [but] he [was unable to] testify to those
    facts.' [Citation.] That vigorous cross-examination occurred as to the absence of details is
    hardly an adequate test of the substance of [the expert's] opinion." Safford, 392 Ill.
    App. 3d at 227.
    ¶ 85          The State further argues that "the validity of Safford has been questioned recently,
    including by this Court in People v. Negron, 
    2012 IL App (1st) 101194
    ." The State
    misapprehends both our holding in Negron and the factual similarity between this case and
    Safford and its dissimilarity to Negron. In Negron, we held that Safford is an "outlier" case
    factually (Negron, 
    2012 IL App (1st) 101194
    at ¶ 41) because the expert in Safford did not
    testify to any points of comparison and also did not explain how he arrived at his expert
    conclusion, which is a rare circumstance. Over the years, most firearm/toolmark expert opinion
    cases involve some number of points of comparison and also detail any unique toolmarks. See,
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    1-12-1016
    e.g., People v. Miller, 
    31 Ill. App. 3d 436
    , 446-47 (1975) (expert testified that the evidence bullet
    and two other bullets test-fired from the weapon all had identical class characteristics of six lines
    and grooves twisting to the right, as well as identical individual markings caused by
    imperfections in the weapon's barrel). There have not been many cases reversing the admission
    of an expert firearm/toolmark examiner's expert opinion for lack of foundation. See People v.
    Berkman, 
    307 Ill. 492
    , 500-01 (1923) (holding a proper foundation had not been laid for the
    ballistics expert's opinion due to a lack of testimony as to facts pertaining to the particular rifling
    of the gun that made the peculiar marks on the fired bullet).
    ¶ 86          Consistent with Safford, in Negron we specifically noted not only that Safford is an
    outlier case factually but we also noted that "no reported case since [Safford] has held that there
    must be a minimum number of points of fingerprint comparison or a disclosure of a specific
    number of points of similarity found by the expert." Negron, 
    2012 IL App (1st) 101194
    at ¶ 41.
    But our holding in Negron does not stand for the proposition that an expert's opinion is
    admissible where he or she does not testify to any points of comparison or any reason for his
    expert opinion.
    ¶ 87           In Negron, the expert not only generally explained the process of fingerprint comparison,
    but he also went into detail about how he compared the defendant's palm print to the recovered
    latent print at the crime scene and included descriptions of the various minutia and points he
    looked for and that in his side-by-side comparison through a magnifying glass he found unique
    areas in the minutia that matched. Negron, 
    2012 IL App (1st) 101194
    at ¶ 37. Thus, the expert in
    Negron described points of minutia, though not stating an exact number of specific points of
    comparison, and he detailed how he arrived at his conclusion.
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    ¶ 88              While toolmark and firearm comparison does not require a minimum number of points of
    comparison, there must be some explanation of the bases for the expert's opinion. We note that
    additionally, it may be the better practice for experts to also show a side-by-side photo
    comparison to aid the trier of fact while explaining the bases for such expert opinions for the jury
    to be able to weigh this evidence. Regardless, the expert must still testify regarding the bases and
    reasons for his or her opinion with some actual comparison.
    ¶ 89              Barr's minimal testimony that he looked at the "overall pattern" and concluded that there
    was "sufficient agreement" equates to telling the trier of fact "take my word for it." Telling the
    jury to "take my word for it" is not enough. There must be some reason given for the expert's
    opinion. Although we have previously declined to expressly hold that there should be a
    minimum number of points of comparison, to establish some foundation it is apparent that at
    least a minimum of one point of comparison or marking or other reason for the expert's opinion
    must be given.
    ¶ 90              What is at issue is the most basic foundational requirement for the admission of an expert
    opinion. If there are no facts given regarding how the opinion was reached, there effectively
    cannot be any relevant and probative cross-examination of an expert's reasons and bases for his
    or her opinion, and the burden is indeed shifted entirely to the defense, as defense counsel
    maintained at oral argument. Foundation as a gatekeeping requirement would be rendered a
    nullity.
    ¶ 91              The State relies on People v. O'Neal, 
    118 Ill. App. 2d 116
    (1969), arguing that there the
    court held that the testimony of the ballistics expert witness was properly admitted in evidence,
    even though there was no factual basis in the evidence to support his conclusion and no
    description of any particular points of similarity. In both Safford and O'Neal the experts did not
    -33-
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    identify any specific points of comparison they relied upon in reaching their opinions. See
    
    Safford, 392 Ill. App. 3d at 221
    ; 
    O'Neal, 118 Ill. App. 2d at 122
    . The difference between O'Neal
    and Safford is that in Safford the expert also did not provide any testimony concerning the
    methodology of how he conducted the examination and comparison of the fingerprints in that
    case and he made no notes that said how he reached his opinion (
    Safford, 392 Ill. App. 3d at 221
    ), whereas in O'Neal the expert did testify to the procedure he used in that case to make his
    comparison, using a comparison side-by-side microscope and an optical bridge and looking at
    the bullets side-by-side at the "small microscopic imperfections made in the bore of the gun."
    See 
    O'Neal, 118 Ill. App. 2d at 121-22
    .
    ¶ 92          Similar to O'Neal, Barr did at least testify the methodology of how he conducted the
    particular examination of the bullet and cartridge casings in this case, testifying that he used a
    comparison microscope with two stages and that, through the oculars, he looked for the "overall
    pattern" that is "based on class and individual characteristics." We note that although O'Neal has
    not been reversed, it is a 1969 case and has been cited only four times (other than the discussion
    in Safford), and not for the particular proposition at issue here, that expert opinions completely
    devoid of any testimony regarding any markings in firearm/toolmark identification have
    sufficient foundation. See People v. Johnson, 
    11 Ill. App. 3d 745
    , 749 (1973); People v.
    Edgeworth, 
    30 Ill. App. 3d 289
    , 301 (1975); People v. Driver, 
    62 Ill. App. 3d 847
    , 853 (1978).
    The only case citing O'Neal for this particular proposition is People v. Miller, 
    31 Ill. App. 3d 436
    (1975), but the expert in that case testified to the class characteristics in his identification
    between the recovered evidence bullets and the firearm. See 
    Miller, 31 Ill. App. 3d at 447
    ("Here
    the test bullets were offered in evidence and although the expert did not describe the details of
    the individual markings caused by imperfections in the gun's barrel, he did describe the class
    -34-
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    characteristics."). Here, Barr only testified to the class characteristics of defendant's firearm as
    observed from the test bullets. Barr did not testify as to any class characteristics on the recovered
    bullet or how it matched defendant's gun, as did the expert in Miller. Miller also is nearly 40
    years old and has also not been recently relied upon in any recent reported precedent for this
    proposition. This leaves no reported case other than O'Neal where a firearm/toolmark
    identification expert's testimony was found to have sufficient foundation where the expert did not
    testify to even a single individual marking on the actual recovered bullets from the crime that led
    to his conclusion.
    ¶ 93           We acknowledge that Safford noted that O'Neal was not "at odds" with the holding in
    Safford, but Safford noted that the ground of the challenge to the expert's testimony was different
    where "[t]he defendant in O'Neal did not argue that the jury was being asked by the expert to
    "take his word for it," as the defendant in Safford claimed. 
    Safford, 392 Ill. App. 3d at 227
    .
    Instead, the defendant in O'Neal had argued that " 'either the test bullets, photomicrographs, or
    an explanation of the particular similarities should have been offered into evidence; and that as a
    result defendant's right to proper cross-examination was improperly restricted.' " Safford, 392 Ill.
    App. 3d at 227 (quoting 
    O'Neal, 118 Ill. App. 2d at 122
    -23). On the other hand, the defendant in
    Safford was challenging the admission of the expert's testimony on the ground that the expert
    provided no supporting facts for his opinion and based his opinion " 'upon facts personally
    known to him,' " which even O'Neal held is impermissible. 
    Safford, 392 Ill. App. 3d at 227
    (quoting 
    O'Neal, 118 Ill. App. 2d at 123
    ). This is the same challenge being made by defendant
    here in this case as well.
    ¶ 94           Upon a close reading of O'Neal, we believe that while the law was correctly stated, the
    application of the law to the facts was inconsistent, as the expert in O'Neal did not testify to those
    -35-
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    facts personally known to him regarding the factual basis of his expert opinion but, rather, only
    to the methodology he employed and his ultimate opinion. To the extent that O'Neal would allow
    admission of expert opinion testimony of an identification by firearm/toolmark examination
    experts based solely on testimony as to the methodology and examination procedure they used,
    without laying any foundation as to any facts they observed that led to their expert conclusion of
    a match we do not follow it, as we hold that such testimony does not satisfy the foundation
    requirement. " '[T]he admission of an expert's testimony requires the proponent to lay an
    adequate foundation establishing that the information upon which the expert bases his opinion is
    reliable.' " (Emphasis added.) 
    Safford, 392 Ill. App. 3d at 221
    (quoting 
    Hiscott, 324 Ill. App. 3d at 122
    , citing 
    Soto, 313 Ill. App. 3d at 146
    ). " 'An expert's opinion is only as valid as the basis
    and reason for the opinion.' " People v. Wright, 2012 IL App (1st) 073106, ¶ 127 (quoting Wilson
    v. Bell Fuels, Inc., 
    214 Ill. App. 3d 868
    , 875 (1991)). Testifying to the method of examination
    used and what the expert is looking for establishes only what the expert did; it does not establish
    any information as to what the expert actually found and does not provide any information for
    the bases and reasons for his or her ultimate opinion. An expert must give some reason for his or
    her opinion.
    ¶ 95                  G. The Error in Admitting Barr's Testimony Was Not Harmless,
    As it Placed the Murder Weapon in Defendant's Hands
    ¶ 96          The State's last argument is that even if Barr's testimony was improperly admitted, this
    error was harmless because defendant was not prejudiced and the State offered "significant other
    evidence of defendant's guilt." To establish that an error was harmless the "State must prove
    beyond a reasonable doubt that the jury verdict would have been the same absent the error."
    People v. Thurow, 
    203 Ill. 2d 352
    , 363 (2003). When deciding whether error is harmless, a
    -36-
    1-12-1016
    reviewing court may: (1) focus on the error to determine whether it might have contributed to the
    conviction; (2) examine the other properly admitted evidence to determine whether it
    overwhelmingly supports the conviction; or (3) determine whether the improperly admitted
    evidence is merely cumulative or duplicates properly admitted evidence. In re Rolandis G., 
    232 Ill. 2d
    13, 43 (2008).
    ¶ 97          The hold the State has failed to carry its burden of showing beyond a reasonable doubt
    that the jury's verdict would have been the same without Barr's testimony. There were no
    eyewitnesses in this case. The testimony of Danies and Stanley merely established that defendant
    changed his jacket the day of the murder but Stanley did not think this was unusual because it
    was raining. We also do not find this unusual or probative. Further, defendant's own statement in
    the videotape of the police interrogation was consistent with what he told the victim's family,
    that he was with Ivory when two individuals who were selling drugs attempted to rob Ivory and
    one of them shot Ivory. Defendant had told Danies and Stanley before the shooting that he was
    "going to put this thing up," which Stanley took to mean he would put his gun away. While the
    State attempted to portray robbery as a motive for defendant to kill Ivory, and Pettis testified that
    defendant told him that he took money from Ivory's pocket after he checked to see if Ivory was
    still alive, $20 was found on Ivory at the medical examiner's office. In his taped interview with
    Detectives Halloran and Gorman, defendant denied that he had a weapon at the time Ivory was
    shot and denied shooting Ivory the night of September 12 and told the detectives he had no
    reason to shoot Ivory. Defendant's jacket was inventoried but was never sent for testing for
    gunpowder residue. The State concedes, "[i]t is correct that Barr's testimony placed the murder
    weapon in defendant's hands and demonstrated that the shot that killed Anderson came from
    defendant's gun."
    -37-
    1-12-1016
    ¶ 98           Other than perhaps DNA evidence, we can think of no evidence more prejudicial than
    evidence literally placing the murder weapon in a defendant's hands. Here, the jury asked to view
    the videotape of defendant's statement to the police. This indicates that the jury was seriously
    weighing the evidence and had doubt about the State's case. Barr's opinion as a
    ballistics/toolmark expert was a critical piece of evidence in this case. The importance of
    presenting such a "match" to the jury could have overshadowed all the other evidence. The
    erroneous admission of Barr's foundationless expert opinion caused substantial prejudice and
    thus denied defendant a fair trial. See People v. Howard, 
    305 Ill. App. 3d 300
    , 309 (1999)
    (holding that the trial court's error in admitting the expert testimony caused substantial prejudice
    to the defendant and denied him a fair trial).
    ¶ 99           We believe that the trial court abused its discretion in admitting the opinion testimony of
    Barr. We further conclude that the trial court's error in admitting the expert testimony caused
    substantial prejudice to the defendant and denied him a fair trial. We therefore reverse the
    defendant's conviction and remand the cause for a new trial.
    ¶ 100                                    II. Sufficiency of the Evidence
    ¶ 101          Defendant next argues that his guilt of the offense of first-degree murder was not proven
    beyond a reasonable doubt, specifically arguing that the "State's case rested on a questionable
    firearms identification between a single bullet and [defendant's] handgun, circumstantial
    evidence, and the somewhat varied statements which [defendant] made regarding the shooting."
    ¶ 102            Because the error in admitting the expert opinion requires that his conviction be
    reversed and the cause remanded for a new trial, we need not address the sufficiency of the
    evidence argument. See People v. Howard, 
    305 Ill. App. 3d 300
    , 309 (1999) (not addressing the
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    1-12-1016
    remainder of the defendant's arguments on appeal where the admission of the expert's testimony
    caused substantial prejudice and necessitated a remand for a new trial).
    ¶ 103           At oral argument, defense counsel raised double jeopardy concerns, though defendant did
    not preserve or raise this issue for review and thus forfeited it. See Ill. S. Ct. R. 341(h)(7) (eff.
    Feb. 6, 2013).
    ¶ 104                                 III. Second-Degree Murder Instruction
    ¶ 105           Defendant argues that the court also erred in not giving a second-degree murder
    instruction, despite defendant's indication at trial that he did not want the instruction, and urges
    this additional ground for reversal. We disagree, as defendant waived the argument by not
    including it in his post-trial motion, and the plain error exception to waiver does not apply here
    because, even if there were any error, such error was invited by defendant where he indicated to
    the court that he did not want the instruction.
    ¶ 106           "The purpose of jury instructions is to provide the jury with the correct legal principles
    applicable to the evidence, so that the jury may reach a correct conclusion according to the law
    and the evidence." People v. Bannister, 
    232 Ill. 2d
    52, 81 (2008). "There must be some evidence
    in the record to justify an instruction, and it is within the trial court's discretion to determine
    which issues are raised by the evidence and whether an instruction should be given." People v.
    Mohr, 
    228 Ill. 2d 53
    , 65 (2008). But "[t]he question of whether sufficient evidence exists in the
    record to support the giving of a jury instruction is a question of law subject to de novo review."
    People v. Washington, 
    2012 IL 110283
    , ¶ 19. "While the giving of jury instructions is generally
    within the discretion of the trial court, we review de novo the question of whether the jury
    instructions accurately conveyed to the jury the applicable law." People v. Ingram, 
    382 Ill. App. 3d
    997, 1006-07 (2008) (citing People v. Parker, 
    223 Ill. 2d 494
    , 501 (2006)).
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    1-12-1016
    ¶ 107           We find first that defendant waived his right to raise the instruction issue by failing to
    bring his claim of error to the attention of the court in his post-trial motion. It is well recognized
    that "a defendant forfeits review of any putative jury instruction error if the defendant does not
    object to the instruction or offer an alternative instruction at trial and does not raise the
    instruction issue in a posttrial motion." People v. Herron, 
    215 Ill. 2d 167
    , 175 (2005). Defendant
    did not include any argument in his post-trial motion that the court erred in not giving a second-
    degree murder instruction. Among other arguments, defendant merely included an argument that
    he was denied a fair trial, without any further specificity. The use of this "boilerplate phrase" of
    "denial of a fair trial" lacking any specificity does not preserve a contention for appeal. People v.
    Cook, 
    352 Ill. App. 3d 108
    , 129 (2004) (citing People v. Willis, 
    241 Ill. App. 3d 790
    , 797
    (1992)).
    ¶ 108           Defendant acknowledges his forfeiture for failing to include the issue in his post-trial
    motion but invokes the plain-error exception to the forfeiture rule. "Plain errors or defects
    affecting substantial rights may be noticed although they were not brought to the attention of the
    trial court." Ill. S. Ct. Rule 615(a) (eff. Jan. 1, 1967). Plain error allows a reviewing court to
    address forfeited errors if a clear or obvious error occurred and either: (1) the evidence is so
    closely balanced that the error alone threatened to tip the scales of justice against the defendant,
    regardless of the seriousness of the error; or (2) the error is so serious that it affected the fairness
    of the defendant's trial and challenged the integrity of the judicial process, regardless of the
    closeness of the evidence. People v. Piatkowski, 
    225 Ill. 2d 551
    , 565 (2007).
    ¶ 109           But here, even if there was any error, defendant invited the error not just by failing to
    request it, but by actively refusing a second-degree murder instruction, thereby precluding any
    plain-error analysis. "Under the doctrine of invited error, an accused may not request to proceed
    -40-
    1-12-1016
    in one manner and then later contend that the course of action was in error." People v. Carter,
    
    208 Ill. 2d 309
    , 319 (2003). For the doctrine to apply, the defendant must affirmatively request or
    agree to proceed in a certain way. People v. Harvey, 
    211 Ill. 2d 368
    , 385 (2004). “Simply stated,
    a party cannot complain of error which that party induced the court to make or to which that
    party consented." In re Swope, 
    213 Ill. 2d 210
    , 217 (2004).
    ¶ 110          "Invited errors are not subject to plain-error review." People v. Sanders, 2012 IL App
    (1st) 102040, ¶ 30 (citing People v. Patrick, 
    233 Ill. 2d 62
    , 77 (2009)). As the court in People v.
    Johnson, 
    2013 IL App (2d) 110535
    aptly summarized:
    " '[A] defendant's invitation or agreement to the procedure later challenged on appeal
    "goes beyond mere waiver." ' People v. Harvey, 
    211 Ill. 2d 368
    , 385 *** (2004) (quoting
    People v. Villarreal, 
    198 Ill. 2d 209
    , 227 *** (2001)). Invited error is sometimes referred
    to as an issue of estoppel in that a defendant may not request to proceed in one manner
    and later contend on appeal that the course of action was in error. 
    Harvey, 211 Ill. 2d at 385
    ***. To allow a defendant to use the exact ruling or action procured in the trial court
    as a vehicle for reversal on appeal would offend notions of fair play, encourage
    defendants to become duplicitous (
    Harvey, 211 Ill. 2d at 385
    ***, and deprive the State
    of the opportunity to cure the alleged defect (People v. Bush, 
    214 Ill. 2d 318
    , 332
    (2005)). Where the defendant invited the error, our supreme court has declined to address
    any related plain-error claim. See, e.g., People v. Patrick, 
    233 Ill. 2d 62
    , 77 *** (2009)."
    Johnson, 
    2013 IL App (2d) 110535
    at ¶ 77.
    ¶ 111          "The purpose of the invited error doctrine is to prevent a defendant from unfairly
    receiving a second trial based on an error which he injected into the proceedings." People v.
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    1-12-1016
    Smith, 
    406 Ill. App. 3d 879
    , 886-87 (2010) (citing People v. Pryor, 
    372 Ill. App. 3d 422
    , 432
    (2007)).
    ¶ 112            The record clearly demonstrates that the court specifically explained the second-degree
    murder instruction to defendant and asked whether defendant wanted the instruction. The court
    gave defendant an opportunity to confer with counsel. After doing so, defendant unequivocally
    indicated he did not want the second-degree murder instruction. See People v. Coleman, 347 Ill.
    App. 3d 266, 273 (2004) (defendant failed to establish entitlement to plain error review of the
    defendant's argument that he had a substantial right to have the trial court instruct the jury sua
    sponte over his own objection on the lesser mitigated offense of second degree murder).
    ¶ 113            Based on this record, defendant clearly invited the error, if there was any. Thus, plain
    error review is precluded. We caution that defendant may not choose to proceed in one manner at
    trial, and then contend on appeal that his chosen route was reversible error.
    ¶ 114                                            CONCLUSION
    ¶ 115            We agree with defendant's argument that the court erred in allowing the testimony of the
    State's firearm/toolmark identification expert where the expert's testimony lacked an adequate
    foundation. We do not, however, hold that the expert's use of the nationally recognized
    "sufficient agreement" standard is insufficient under Frye, because defendant's objection at trial
    was not based on Frye and it is well established that the standard continues to be generally
    accepted. Rather, the expert's testimony failed the minimum foundational requirements for
    general expert testimony and should have been excluded. Because the improper admission of the
    expert's opinion testimony substantially prejudiced defendant, we reverse and remand for a new
    trial.
    -42-
    1-12-1016
    ¶ 116          Given that our holding regarding the improper admission of the expert's testimony caused
    substantial prejudice and requires remand for a retrial, we make no holding regarding defendant's
    sufficiency of the evidence argument.
    ¶ 117          Finally, we hold that defendant waived any review of his argument that the trial court
    erred in not giving a second-degree murder instruction where defendant did not raise the issue in
    his post-trial motion and plain error does not apply because defendant invited any alleged error
    by indicating at trial that he did not want the instruction.
    ¶ 118          Reversed and remanded.
    ¶ 119          JUSTICE MASON, dissenting.
    ¶ 120          I agree with our observation in People v. Negron (
    2012 IL App (1st) 101194
    , ¶ 41) that
    People v. Safford (
    392 Ill. App. 3d 212
    (2009)) is indeed an "outlier case" and that "no reported
    case since then" has followed its reasoning. I do not believe this case should be the first to do so
    and for that reason, I respectfully dissent. Because any deficiencies in Barr's testimony affected
    its weight and not its admissibility and because the jury, as the trier of fact, was entitled to accept
    Barr's opinion along with the other evidence in this case, I would affirm Jones' conviction.
    ¶ 121          Jones concedes, as he must, that Illinois courts have accepted opinion testimony from
    ballistics experts for decades. See People v. Fisher, 
    340 Ill. 216
    , 238-39 (1930). Jones does not
    contest that Barr was qualified by education, training and experience to render an opinion in the
    field of ballistic firearms identification.     Indeed, Barr was accepted as an expert without
    objection. Jones further does not dispute that the methods Barr used to make the comparisons
    between the bullet recovered from under Ivory Anderson's body and the fired cartridge from the
    weapon owned by Jones were typical of those used by firearms identification experts and were
    sufficient to enable Barr to reach an opinion. He does not suggest that Barr did not, in fact,
    -43-
    1-12-1016
    engage in the analysis he testified to. Jones admits that Barr reviewed his findings with a
    colleague who agreed with Barr's opinion (although Jones questions the colleague's objectivity).
    Jones further insisted prior to trial and the trial court agreed that Barr should not be permitted to
    lend weight to his subjective opinion by testifying to a reasonable degree of "scientific" or
    "ballistics" certainty.   Jones' only claim is that Barr's failure to specifically identify the
    "sufficient areas of agreement" between the recovered and test-fired bullets renders Barr's
    opinion inadmissible as lacking an adequate foundation.
    ¶ 122            First, as a threshold matter, the record does not permit us to conclude that identification
    of the particular areas of a match between a recovered bullet and a test-fired bullet is standard in
    the firearms identification field, a conclusion that is necessary before we can find that Barr's
    testimony was deficient because it lacked this detail. Barr's testimony establishes that such an
    analysis is not used in the Illinois State Police laboratory and Barr was unaware of any other
    firearms experts who "count lines" or the number of striations or scratch marks on bullets in
    order to make an identification. Authorities in the field confirm this. The standard utilized by
    Barr—sufficient areas of agreement—is the standard adopted by the Association of Firearms and
    Toolmark Examiners. See Theory of Identification, Range of Striae Comparison Reports and
    Modified Glossary Definitions—An AFTE Criteria for Identification Committee Report, 24(2)
    AFTE J., 336-40 (1992 ). No reported authority—from courts, scholars or technical writers in
    the field—has recognized counting lines or scratch marks as a component of a valid opinion
    regarding the identification of a particular firearm as the source of a fired bullet. See Ronald
    Nichols, The Scientific Foundations of Firearms and Tool Mark Identification – A Response to
    Recent           Challenges,          available          on          the         internet          at
    http://www.afte.org/announcements/critrevnichols.htm (last visited on March 17, 2015); see also,
    -44-
    1-12-1016
    United States v. Glynn, 
    578 F. Supp. 2d 567
    , 574 (S.D.N.Y. 2008) ("[W]hereas both a ballistics
    examiner and a fingerprint examiner are ultimately called upon to make a subjective judgment of
    whether the agreement between two pieces of evidence is 'sufficient' to constitute a 'match,' a
    fingerprint examiner may not declare a match unless a pre-specified number of 'points' of
    similarity exist between the two samples [citations]. Although attempts have been made to
    introduce similar minimum standards and 'protocols' into ballistics analysis, [footnote], such
    attempts have not yet met with general acceptance…."). Thus, the majority seeks to impose on
    this field a numerical or quantitative standard not ever recognized to be relevant or required.
    Because Jones cannot demonstrate that Barr's opinion was at variance with long accepted
    standards in the field, his challenge to its admissibility on this basis must fail.
    ¶ 123           Second, it is not the foundation for Barr's opinion that Jones challenges; it is the
    specificity of Barr's expression of his opinion that forms the crux of Jones' arguments. Once the
    State established Barr's qualifications, the methods he used to compare the bullets and the fact
    that those methods were typical of those used by Barr and others in the field, the foundation was
    laid. And if the State, after laying a foundation, chose to elicit in summary fashion Barr's
    opinion that the bullets matched and both were fired from the weapon owned by Jones, that
    decision does not operate to retroactively eliminate the foundation for the opinion already
    established. It certainly renders the opinion weaker, a point defense counsel emphasized in both
    cross-examination and closing argument, but it does not render it inadmissible.
    ¶ 124           The argument raised by Jones here is identical to that raised and rejected decades ago in
    People v. O'Neal, 
    118 Ill. App. 2d 116
    (1969). Like Jones, the defendant in O'Neal conceded the
    witness' expertise in the field of firearms identification and that a properly qualified expert may
    render an opinion as to whether a bullet recovered from a crime scene was fired from a particular
    -45-
    1-12-1016
    weapon. As described by the court, "defendant argues that in the instant case there was no
    factual basis in the evidence to support the expert's conclusion, that the basis of his opinion was
    not placed before the jury, that either the test bullets, photomicrographs, or an explanation of the
    particular similarities should have been offered into evidence; and that as a result defendant's
    right to proper cross-examination was improperly restricted." (Emphases added) 
    Id. at 122-23.
    Finding that the expert's testimony was properly admitted, the court observed:
    "The witness testified that he received the gun and bullet in question at the laboratory;
    and the gun and the bullet were introduced into evidence. He also testified that he fired
    the gun twice, and that he compared the test bullets with the one in question. He testified
    to the procedure generally used and to the reasons why a comparison of bullets will
    reveal the identity of the gun which fired them. On the basis of these tests, he was of the
    opinion that the gun found on defendant's person fired the bullet found in the
    complaining witness' coat. The expert witness set forth the reasons for his conclusion,
    and it was for the triers of fact to determine how much weight to give his testimony. It
    should also be noted that the bullet and gun were introduced into evidence, and that
    defendant was not foreclosed from conducting similar tests, either prior to or during
    trial." 
    Id. at123-24. No
    reported case in Illinois since O'Neal has reached the opposite result with respect to
    testimony from a firearms identification expert. See People v. Miller, 
    31 Ill. App. 3d 436
    , 446-
    47 (1975) (rejecting challenge to State's ballistics expert: "the test bullets were offered into
    evidence and although the expert did not describe the details of individuals markings caused by
    imperfections in the gun's barrel, he did describe the class characteristics.").
    -46-
    1-12-1016
    ¶ 125            The court's observation in O'Neal regarding the ability of the defendant to conduct
    ballistics tests is particularly relevant in this case. The majority concludes that Jones was
    hampered in his defense by his inability to effectively cross-examine Barr. But this conclusion is
    refuted by the record. The State disclosed to defense counsel Barr's report (which is not included
    in the record) and the contents of his file, which, as Barr testified, included a photograph of the
    side-by-side comparison of the recovered and test-fired bullets. Defense counsel was permitted
    to interview Barr prior to trial. Also in advance of trial, counsel for Jones sought and was
    granted leave to have Jones' .380 caliber firearm, the recovered bullet and the test-fired bullets
    released to counsel and examined by an expert of counsel's choosing. At defense counsel's
    urging, the order granting the testing further provided that the identity of the "scientist" 5 and
    laboratory used to conduct the testing would remain confidential. The evidence reviewed by
    Barr was released to defense counsel on August 11, 2010, four months before trial.
    ¶ 126            When the evidence was returned to the State, defense counsel inadvertently included a
    copy of their expert's report, which the prosecutor promptly returned.                          Thus, Jones took
    advantage of the opportunity to have the evidence independently tested. We may also safely
    assume that the independent testing did not produce an expert opinion at variance with Barr's or
    a conclusion that there were no areas of agreement between the individual characteristics of the
    recovered and test-fired bullets or such evidence would naturally have been introduced at trial or,
    at a minimum, used in cross-examining Barr. And, in particular, we may assume that whatever
    independent examiner defense counsel chose did not conclude that there were an insufficient
    number of matching lines or scratch marks to reach the opinion that the bullet recovered from
    under the victim did not match the bullet fired from the weapon owned by Jones.
    5
    Ironically, defense counsel labeled the independent examiner a "scientist" while insisting that Barr be precluded
    from testifying to his opinion with any degree of "scientific certainty."
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    ¶ 127          Barr was not "unable," as characterized by the majority, to articulate similarities between
    the recovered bullet and the test-fired bullets. The question the prosecutor asked Barr was
    whether he was able to determine the individual characteristics of the recovered bullet after he
    received it. But the only way a firearms examiner can reach a conclusion about the presence of
    similar characteristics—class or individual—is by comparing a recovered bullet to a test-fired
    bullet, a process to which Barr had not yet testified. So Barr's response to the question—"Could
    you be a little more specific as to what you mean by that?"—did not indicate either a lack of
    understanding of the concept of individual characteristics or an inability to identify them in this
    case, but only that individual characteristics must be discussed in the context of comparison of
    bullets. As the State indicated at trial, if defense counsel believed the number of lines and
    scratch marks was relevant to Barr's opinion (which Barr disclaimed), he was free to cross-
    examine Barr on the topic and having the benefit of Barr's report and the contents of Barr's file
    disclosed in discovery as well as his own expert's report, defense counsel was not hampered in
    that effort. Defense counsel chose not to pursue this line of questioning with Barr, perhaps in
    realization of the fact that it would not help his client's case. Further, nothing prevented defense
    counsel from using photographs of the evidence to illustrate his cross-examination and, in fact,
    as noted above, Barr testified that a photograph of the side-by-side comparison of the bullets was
    included in his file produced in pretrial discovery. While the majority concludes that the "better
    practice" would be for the prosecution to utilize photographs during an expert's direct
    examination, no authority is cited for the proposition that absent such demonstrative evidence,
    the expert's opinion lacks an adequate foundation.
    ¶ 128          Like the majority, I do not agree with the State that Jones "benefitted" from the lack of
    detail in Barr's testimony. Obviously, Jones would have been better off had Barr not testified at
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    all. But the decision of both the State and the defense to refrain from eliciting further detail
    regarding the "sufficient areas of agreement" did allow defense counsel to argue at length to the
    jury that they should reject Barr's subjective opinion:
    "It is up to you to accept [Barr's] opinion or to reject that opinion. That is your decision.
    Consider as you heard from Justin Barr that it is his personal opinion. It is his subjective
    opinion. He said he found sufficient areas of agreement between a test fired bullet that he
    fired in Joe's gun and the bullet found underneath Ivory's body at the medical examiner's
    office.
    Did he ever tell you what those sufficient areas of agreement were? What does that
    mean, sufficient areas of agreement? What does agreement mean, a lot of areas?
    He told you he took a photograph, and he marked on the photograph. Did you see that
    photograph? Was it introduced into evidence?
    What did he tell you about what guided his personal subjective opinion? There aren't any
    national standards to guide his opinion. His own laboratory doesn't even have standards
    to guide his opinion. It is just his opinion.
    The prosecutor says that's science. He did tell you about a verification process, but you
    know, he reaches his opinion first and then the verification process is the buddy system.
    He goes to a coworker and says this matches. Do you agree with me?
    Do you agree with your coworker who you work beside? And you know what, I verify
    your opinions too. You decide the facts.
    ***
    Now, if you have a reasonable doubt about Justin Barr's opinion that the bullet from
    Ivory's body was fired in Joe's gun, if you have a reasonable doubt as to that, then the
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    State hasn't proved [that defendant performed the acts which caused the death of Ivory
    Anderson]. You go no farther. That is it.
    If they don't prove that to you based on that opinion, Joe Jones is not guilty."
    Defense counsel, having been provided access to all the details he claims were missing from
    Barr's testimony, made the most of the absence of those details in his arguments to the jury. Far
    from being hampered in mounting his defense, counsel skillfully used the non-specific standard
    accepted in the field of firearms identification—sufficient areas of agreement—to his client's
    advantage.
    ¶ 129          Jones' argument regarding the sufficiency of the evidence fails. The evidence in this case
    was actually much stronger than described by the majority. Jones was the last person seen with
    Anderson alive, minutes before his murder. When Anderson was shot by robbers (according to
    Jones' account to police in a videotaped interview that was played for the jury), Jones ran from
    the scene to his mother's house instead of staying to help police find the person who shot his
    friend. Immediately after the shooting, Jones ran by his girlfriend, told her "your friend has been
    shot" and kept running in the opposite direction. According to other witnesses, when Jones
    returned to the area later that evening, he had changed jackets, was "jittery" and did not talk
    about Anderson's murder. Jones went to visit Anderson's family two days after the shooting and
    Anderson's family called the police because they, according to Jones, thought he had something
    to do with the murder. It was only after he was in police custody that Jones told them about the
    supposed robbery. Jones also told police that if they did an autopsy, they would find .38 or .357,
    not .380 caliber bullets in Anderson's body, claiming that in the dark and in the pouring rain he
    had been able to see the weapon fired by the robber. Jones repeatedly denied to police that he
    was in possession of a gun on the day Anderson was murdered or that he even owned a gun, yet
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    (i) a .380 semi-automatic weapon was recovered from his home and (ii) he told other witnesses
    and contended at trial that when Anderson was robbed, he took out his gun and acted in the
    justifiable defense of others by firing at the perpetrators. After he was in custody, Jones told
    another acquaintance, also in custody, that he took money from Anderson after he was shot. All
    of this evidence was properly considered by the jury and is sufficient to support Jones'
    conviction.
    ¶ 130          Further, unlike the jury in Safford, it is not apparent that the jury in this case had any
    difficulty accepting Barr's opinion.     See 
    Safford, 392 Ill. App. 3d at 231-32
    (Wolfson, J.,
    dissenting) ("In this case it was made clear to the jury it was being asked to accept an opinion
    that was short of supporting details. Cross-examination on the point was vigorous. Obviously,
    that factual deficiency troubled the jury because it asked for a magnifying glass and had
    difficulty reaching a verdict. Still, this was a matter for the jury to decide and this is what it
    did."). Here the record does not reflect any similar hesitance by the trier of fact.
    ¶ 131          I also agree that by specifically requesting that a second degree murder instruction not be
    given, Jones has forfeited any claim of error premised on the court's failure to give that
    instruction.
    ¶ 132          Consequently, I can find no valid basis upon which to reverse Jones' conviction. Despite
    the lack of detail in Barr's opinion, the jury evidently considered it, together with the other
    evidence presented at trial, as sufficient to convict Jones of first degree murder. Given the ample
    opportunity provided to defense counsel to challenge the basis for Barr's opinion, there was no
    unfairness in allowing that opinion to be considered by the jury. Because, based on defense
    counsel's arguments, the jury was undoubtedly aware of the lack of detail in Barr's testimony, we
    are simply second guessing the trier of fact when we reverse. See People v. Cooper, 194 Ill. 2d
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    419, 430-31 (2000) (under appropriate standard of review, "a reviewing court will not substitute
    its judgment for that of the trier of fact on issues of the weight of evidence or the credibility of
    witnesses."). For these reasons and those articulated by Justice Wolfson in his dissent in Safford
    (392 Ill. App. 3d at 231 ("I find no authority that supports the proposition that the lack of detail
    we find here is devastating enough to bar a qualified and experienced fingerprint examiner's
    opinions")), I respectfully dissent.
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