People v. Robinson , 2013 IL App (1st) 102476 ( 2014 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Robinson, 2013 IL App (1st) 102476
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ELLIOT ROBINSON, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-10-2476
Filed December 2, 2013
Held Defendant’s conviction for first degree murder was upheld on appeal,
(Note: This syllabus since, inter alia, the sixth amendment was not violated by the admission
constitutes no part of of the victim’s dying declarations, expert testimony about toolmark and
the opinion of the court firearms identification was admissible without a Frye hearing, the
but has been prepared admission of evidence of defendant’s statement that he had sold bullets
by the Reporter of to the victim did not violate the prohibition against the admission of
Decisions for the other-crimes evidence but, rather, was relevant to the extent that it
convenience of the supported defendant’s claim that he had no dispute with the victim and
reader.)
it showed his consciousness of guilt, and defendant’s argument that the
trial court’s failure to substantially comply with Supreme Court Rule
431(b) constituted plain error failed in the absence of any showing that
the evidence was closely balanced.
Decision Under Appeal from the Circuit Court of Cook County, No. 06-CR-21382; the
Review Hon. Joseph M. Claps, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Melinda Grace Palacio, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
Peter D. Fischer, Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE REYES delivered the judgment of the court, with opinion.
Presiding Justice Rochford and Justice Hall concurred in the judgment
and opinion.
OPINION
¶1 Following a jury trial in the circuit court of Cook County, defendant Elliot Robinson was
found guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 2004)) and sentenced to 48
years in prison. On appeal, defendant contends: (1) the admission of the victim’s statement
made shortly before his death violated defendant’s right to confront the witnesses against
him; (2) the trial judge should have excluded the toolmark and firearms identification
evidence as lacking a scientific basis or conducted a hearing on the admissibility of the
evidence; (3) the trial court should have suppressed testimony regarding defendant’s
statement made in the lockup; (4) the trial court erred in admitting defendant’s statement that
he sold bullets to the victim; and (5) the jury venire was improperly questioned during voir
dire in violation of Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). For the following
reasons, we reject defendant’s arguments and affirm the judgment of the circuit court.
¶2 BACKGROUND
¶3 The record on appeal discloses the following facts. Defendant was indicted on six counts
of first degree murder and four counts of aggravated unlawful use of a weapon for the
October 12, 2005, shooting death of Centrale Collins (Collins). Prior to trial, defendant filed
five motions in limine relevant to the issues raised in this appeal.
¶4 Pretrial Motions
¶5 Defendant filed a motion to exclude statements Collins provided to paramedic Leroy
Phillips (Phillips) shortly before his death. Defendant argued these statements were
inadmissible testimonial hearsay under Crawford v. Washington, 541 U.S. 36, 68 (2004). The
trial court denied the motion, ruling the statements were admissible as dying declarations and
not testimonial.
¶6 Defendant also filed a motion seeking a hearing on the admissibility of the State’s
-2-
proposed use of toolmark and firearms identification evidence pursuant to Frye v. United
States, 293 F. 1013, 1014 (D.C. Cir. 1923). The motion argued toolmark and firearms
identification analysis has not been scientifically validated and lacks objective standards or
a known error rate. The motion also asserted there is no general consensus that toolmark and
firearms examiners can make an identification based on a few matching characteristics. The
trial court, indicating there is no scientific process involved in firearms comparison which
would be subject to Frye, denied the motion for a hearing.
¶7 Defendant subsequently moved to preclude the State’s firearms examiners from testifying
that their conclusions were within “a reasonable degree of scientific certainty.” The trial
court ruled the State’s firearms examiners would be permitted to testify regarding their
expertise in their respective fields, but would be barred from opining and testifying their
conclusions were within “a reasonable degree of scientific certainty.”
¶8 In addition, defendant filed a motion in limine to bar the State from introducing evidence
that defendant was involved in the June 2, 2005, armed robbery of Arne Kent (Kent) and
Geneva Benton (Benton) (the Kent robbery). The State sought to admit evidence of the Kent
robbery because the firearms evidence indicated cartridge cases recovered by police at the
scene of the Collins shooting and cartridges fired during the Kent robbery were fired from
the same weapon. As one of the victims in the Kent robbery identified defendant as the
perpetrator, the State argued the evidence of the Kent robbery was admissible as evidence
of the shooter’s identity in this case. The trial court denied defendant’s motion to exclude the
evidence from the Kent robbery.
¶9 Lastly, defendant moved to exclude any statements defendant made which were not
recorded in accordance with state law. See 725 ILCS 5/103-2.1 (West 2008). The trial court
heard this motion prior to the trial testimony of Chicago police detective Danny Stover. At
the suppression hearing, Detective Stover testified defendant, while being taken to the lockup
area to be processed, admitted he was at the scene of the shooting, but asserted he was not
the shooter. The police previously recorded defendant denying any knowledge or information
regarding the shooting. The trial court denied the motion to exclude the testimony as to
defendant’s statements, finding the statements in the lockup area were spontaneous and not
the product of police interrogation.
¶ 10 Jury Selection
¶ 11 During voir dire, the trial court explained the following legal principles to the jury venire:
defendant was presumed innocent; the State bore the burden of proving defendant guilty
beyond a reasonable doubt; and defendant had the right to not present evidence and not
testify. After discussing each principle, the trial court requested the potential jurors to raise
their hands if they had a problem with the principle. No jurors raised their hands after these
questions were posed. Defense counsel lodged no objection to this procedure.
¶ 12 Trial
¶ 13 Defendant’s trial commenced on December 1, 2009. Neil Sennett, a paramedic for the
City of Chicago fire department, testified that on October 12, 2005, he was dispatched to the
-3-
corner of 71st Street and Champlain Avenue at 3:57 p.m. Sennett observed Collins lying on
his back in the rear garden of 7131 South Champlain Avenue and the first responders from
fire engine 61 (the engine) were administering emergency care with oxygen, trauma dressings
and saline IVs. Sennett spoke to Collins at the scene. According to Sennett, Collins was
conscious and alert. Sennett requested Collins’ name, date of birth and address, and Collins
responded accordingly. Sennett further testified that after Collins was placed in the
ambulance, he was given oxygen, another saline IV, and wound care because he was
bleeding profusely. According to Sennett, Collins was not administered painkillers because
the only painkiller on board was morphine, which would have dropped his blood pressure
further.
¶ 14 Inside the ambulance, Collins inquired of Sennett whether he was going to die. Sennett
testified he held Collins’ hand and said, “[Y]es, young man, I’m sorry you are going to die.”
Immediately thereafter, Sennett heard his partner Phillips inquire whether Collins knew who
shot him. Sennett heard Collins respond it was “Elliot.” Phillips inquired where Elliot was
from, to which Collins responded, “71st and Champlain.” When Phillips inquired of Collins
why he was shot, Sennett heard him reply Elliot accused Collins of stealing Elliot’s weapon.
¶ 15 Sennett then drove the ambulance to Stroger Hospital at 4:13 p.m. According to Sennett,
Collins was conscious when he opened the rear of the ambulance, but Collins died before he
and Phillips transported Collins through the first set of hospital doors.
¶ 16 Phillips testified he was dispatched to 7131 South Champlain on October 12, 2005.
Phillips confirmed the engine paramedic at the scene had administered Collins an IV with
two bags of fluid, oxygen and bandages before Phillips arrived, but no medication. After
speaking with the engine paramedic, Phillips spoke to Collins and inquired about his name,
date of birth and other general questions. According to Phillips, Collins was awake and
conscious when the questions were being posed to him.
¶ 17 After Collins was placed in the ambulance, Collins inquired of Sennett whether he was
going to die; Sennett informed him he was. Phillips testified he then inquired of Collins who
shot him and Collins responded “Elliot.” Philips then inquired, “Elliot who?” and Collins
replied, “Elliot from 71st and Champlain.” Phillips also testified he asked Collins “Why did
he shoot you?” and Collins said, “Over a stolen gun.”
¶ 18 Phillips and Sennett then transported Collins to Stroger Hospital. Phillips further testified
he completed a run sheet regarding the incident and noted Collins provided a statement while
being prepared for transport.
¶ 19 Dr. Kendall Crowns, a Cook County deputy medical examiner, testified he performed the
autopsy of Collins on October 13, 2005. Dr. Crowns observed five through-and-through
gunshot wounds. Dr. Crowns also observed several abrasions on the body and a bruise to the
right eye, which Crowns opined could have been caused from a fight or a fall. Dr. Crowns
opined the cause of death was multiple gunshot wounds and the manner of death was
homicide.
¶ 20 Detective Danny Stover testified he was assigned to investigate the Collins shooting and
proceeded to 7131 South Champlain Avenue at 5:15 p.m. Detective Stover was informed by
other detectives Collins had died, but had provided statements to the paramedics. Detective
-4-
Stover’s partner, Timothy Murphy, searched a database of public records for an “Elliot” near
71st Street and Champlain Avenue, which yielded one result, for defendant at 7141 South
Champlain Avenue. Detective Stover testified he proceeded to that address with other
officers and spoke to defendant’s mother. Detective Stover left the residence, but remained
outside for a short while, at which point a vehicle carrying defendant arrived. Detective
Stover identified defendant in court. Stover also testified he notified defendant his name was
mentioned in an investigation. After defendant agreed to talk, Detective Stover and defendant
proceeded to Area 2 police headquarters. According to Detective Stover, crime laboratory
personnel performed a gunshot residue test on defendant before Detective Stover escorted
him to Area 2 for an interview.1
¶ 21 Detective Stover further testified he and Detective Tom Shebish informed defendant of
his constitutional rights. The police then spoke to defendant regarding the shooting, even
“fishing” with lies to see how he would respond, for instance, to the assertion Collins had
been shot 20 times. Detective Stover added the conversation with defendant was recorded
on a videotape, a redacted version of which was shown to the jury, with instructions the jury
was not to speculate regarding the contents of the redacted portions.
¶ 22 On the videotape, defendant acknowledged he knew Collins, but indicated the two were
not close friends. Defendant stated he met with Collins on the Monday prior to the shooting,
at which time Collins informed him “some guys were f***ing with him.” According to
defendant, Collins said he needed bullets and defendant replied he would attempt to obtain
some bullets from his brother. Defendant further stated he obtained the bullets at Collins’
request and sold them to Collins for $30. In addition, defendant stated that on the day of the
shooting he attended a class at Chicago State University. Defendant learned of the shooting
in a telephone call he received before leaving school at 3:45 p.m. Defendant proceeded from
class to meet Tazie Williams (Williams). Defendant proceeded by bus and arrived at 4:40
p.m.
¶ 23 Continuing with his testimony, Detective Stover testified he confronted defendant with
the statement Collins provided to the paramedics before he died and defendant denied any
involvement. After defendant’s statements were recorded on the videotape, he was
transferred to the 5th District lockup to be photographed and fingerprinted. While waiting
for lockup personnel to open the door, defendant informed Detective Stover and a Detective
Shebish he wanted to talk. According to Detective Stover, defendant stated “this was bogus”
and he was at the scene but did not shoot Collins.
¶ 24 In February 2006, Detective Stover learned the firearms evidence in the Kent robbery
matched the firearms evidence in this case. Detective Stover met with Kent and Benton. On
August 30, 2006, defendant was arrested for the murder of Collins.
¶ 25 Thomas Mander (Mander), a forensic investigator for the Chicago police department,
testified that on October 12, 2005, he processed the crime scene at 7131 South Champlain
Avenue, which was a boarded-up two-flat building. At the scene, Mander recovered five
1
The record indicates the results of the gunshot residue testing were negative. Forensic
scientist Ellen Connelly was unable to conclude whether defendant fired a weapon.
-5-
cartridge cases, identifying them all to be .40 caliber, but from three different manufacturers.2
¶ 26 Tiffany Kimble, a forensic scientist employed by the Illinois State Police, testified she
examined five discharged cartridge cases from the Collins shooting and determined there
were no suitable latent finger impressions on any of them.
¶ 27 Caryn Tucker (Tucker), a forensic scientist in the firearm and toolmark section of the
Illinois State Police Forensic Science Center, testified she held a bachelor’s degree in
biology, with a minor in chemistry from Quincy University, as well as a master’s degree in
forensic science from the University of Illinois at Chicago. Tucker completed a two-year
training program sponsored by the Illinois State Police, which included practical
examinations of firearms and ammunition components. She also attended courses from the
federal Bureau of Alcohol, Tobacco and Firearms (ATF) and firearms manufacturers
regarding the operation and internal workings of firearms. Tucker also was trained to use the
integrated ballistic identification system (IBIS), a computerized database which captures
images of fired cartridge cases and bullets to compare evidence collected from various crime
scenes. Tucker testified she has been qualified to testify as an expert in firearms
identification on 27 occasions. Tucker had completed two proficiency tests in her field during
the prior year.
¶ 28 Tucker explained firearms identification is a subdiscipline of forensic science concerned
with determining whether a fired cartridge case or bullet was fired by a particular weapon.
According to Tucker, the basis of firearms identification is in the reproduction and similarity
of what examiners refer to as class characteristics and individual characteristics. Class
characteristics are features determined prior to manufacture, such as caliber, the breach face
pattern3, the firing pin impression shape, the number of lands4 and grooves and direction of
twist. Individual characteristics are imperfections and irregularities caused during
manufacture or resulting from use, abuse, coercion or rust. Tucker testified firearms
examiners use a comparison microscope, which is essentially two microscopes joined by an
optical bridge, to compare the class and individual characteristics of two pieces of evidence.
¶ 29 On cross-examination of her qualifications, Tucker testified her comparisons are a
subjective determination, but they are based on objective scientific principles and verified
by a second examiner. Tucker also testified she applied the definitions and guidelines
promulgated by the Association of Firearm and Tool Mark Examiners (AFTE). Tucker
agreed the AFTE guidelines are not mandatory, but added she must follow them to reach
conclusions to a level of certainty with which she is comfortable. Tucker acknowledged it
would be impossible for her to state with absolute certainty that two firearms could not
2
Mander also recovered a black, hooded sweatshirt and blood samples from the pools of
blood on the ground. A forensic scientist employed by the Illinois State Police from 2005 to 2008
testified defendant’s DNA was excluded from a mixture taken from a portion of the sweatshirt.
3
Tucker testified that when a bullet is fired, the cartridge case will move rearward into an
area known as the breach face.
4
“Lands” are the ridges between grooves.
-6-
produce identical markings on a fired cartridge case. Tucker further testified the increased
automation in firearms manufacture since 1929 creates potential carryover in subclass
characteristics, e.g., when something on a manufacturing tool carries over from one weapon
to the next, but the weapons would not have similar individual characteristics. Moreover,
Tucker testified the AFTE theory of identification, which is followed by most firearms
examiners in the country, was the subject of a validation study.
¶ 30 After the trial court found Tucker qualified to testify as an expert, Tucker testified she
received the fired cartridge cases from this shooting in December 2005. Tucker’s
microscopic examination of the cartridge cases led her to conclude they were all discharged
from the same weapon, a conclusion verified by a second examiner in her laboratory. Tucker
then placed one of the cartridge cases into the IBIS, which generated possible links to other
incidents. Tucker called for the delivery of evidence from two other incidents for
comparison, but concluded the cartridge cases in this case could not be identified or excluded
as having been fired from the firearms in the other incidents.
¶ 31 Peter Brennan (Brennan), a group supervisor in the firearm and toolmark section of the
Illinois State Police Forensic Science Center, testified he has a bachelor’s degree from North
Central College and completed the two-year training program sponsored by the Illinois State
Police. Brennan also attended various workshops held by the FBI, ATF, and firearms
manufacturers. Brennan had been qualified to testify as an expert in firearms and toolmark
identification on 26 separate occasions in state court and once in federal court. Brennan
participates in annual proficiency tests and has conducted thousands of firearms comparisons.
¶ 32 After the trial court found Brennan qualified as an expert witness, Brennan testified he
was assigned to examine evidence related to the Kent robbery. Brennan took custody of the
cartridge cases from the Kent robbery on January 24, 2006. Brennan took the cartridge case
which seemed most representative of the Kent robbery and submitted it to an automated
database known as IVAS,5 which returned a list of potential candidates for comparison. After
viewing the images from these candidates, Brennan called for the cartridge cases recovered
from the Collins shooting. Brennan performed a comparison and concluded the cartridge
cases in the Kent robbery were fired by the same weapon as the cartridge cases fired in the
Collins shooting. According to Brennan, his conclusion was verified by a second examiner.
On cross-examination, Brennan testified that to his knowledge, there has never been a
difference of opinion between two examiners in his office which warranted outside review,
although there was a procedure in the event of such disagreement.
¶ 33 Kent testified that on the evening of June 1, 2005, or the early morning of June 2, 2005,
he and Benton were robbed at gunpoint in the alley behind Benton’s house at 36 East 101st
Street. Kent also testified a man with a gun knocked on the window of his vehicle and
instructed him to get out. Kent further testified he was standing at the left front fender of his
automobile when the man instructed him to hand over all of his money and to take off his
clothes. According to Kent, the man wore a ski mask covering only his nose, cheeks and
mouth so Kent could only observe the top portion of his face, his head and hair. Kent
5
Brennan did not explain this acronym in his testimony.
-7-
testified, however, the man was two feet away from him when he pulled down his mask and
said “I’m that N*** Raamon, I don’t give a f***. I want everything you got because if you
try to run I’m going to kill you’re a***.”
¶ 34 Kent additionally testified the man instructed him to go into the garage and lay on the
floor, where Barton was located. After Kent went into the garage, the man instructed him to
go to the fence on the other side of the alley and stated if Kent ran, he was going to kill him.
Kent testified he then ran toward Michigan Avenue and heard gunshots.
¶ 35 Kent reported the crime to the police. According to Kent, on February 10, 2006,
Detective Stover and another detective came to his residence to present him with some
photographs to examine. At the time, Kent provided a tentative identification of defendant.
On August 21, 2006, Kent went to the Area 2 police headquarters and viewed a lineup where
he identified defendant as the offender who robbed him at gunpoint. Kent also identified
defendant in court.
¶ 36 Benton testified for the defense regarding the Kent robbery. Contrary to Kent’s
testimony, Benton testified she never observed the man remove his mask. Benton was unable
to identify the perpetrator of the Kent robbery and did not recognize defendant in court.
¶ 37 Joan Agnew (Agnew), an attorney at the firm of James M. Scanlon and Associates–who
was the general counsel for the Chicago Board of Election Commissioners–testified that
certified voting registration records are required by law to be kept in the normal course of
business. Agnew is able to determine voter registrations for a static year and did so for 2004
and 2006. According to Agnew, the corner of 71st Street and Champlain Avenue touches
three different precincts, so she reviewed registration records for the entire ward. Agnew
testified that other residents of the ward registered to vote have “Elliott” in part of their
name: (1) Vern Lee Elliot at 7221 South Lawrence Avenue, born in 1937; (2) Elliot Johnson
at 7240 South Champlain Avenue, born in 1912; and (3) Elliot D. Cameron, Sr., at 7046
South Eberhardt Avenue, born in 1972.
¶ 38 Williams testified she met defendant through her godsister and knows him as “L.”
Williams testified she lived at 71st Street and Damen Avenue and saw defendant on October
12, 2005. According to Williams, defendant telephoned before he came over. Defendant
arrived at approximately 4 or 4:20 p.m. Williams testified she and defendant watched
television. Williams also gave defendant a Band-Aid for a cut on his hand because she
thought it “looked nasty” since it was still open but not bleeding. Approximately 2½ or 3
hours later, defendant received a telephone call from his mother and then he departed.
¶ 39 Patrick Steppe (Steppe) also testified for the defense. Steppe was visiting his old
neighborhood and walking down 72nd Street toward Champlain Avenue when he heard
gunshots and observed three individuals he did not recognize running out of the gangway.
Steppe testified he proceeded down the gangway and into a backyard where he found Collins
on the ground, shot and beaten. Steppe telephoned 911 and later spoke to the detectives at
the scene, but was never contacted by the police thereafter.
¶ 40 Darrin Crowder, a Chicago police detective, testified he lived at 7108 South Chaplain
Avenue. Detective Crowder is active in his community and frequently had neighborhood kids
over to play with his sons. Detective Crowder testified he had known defendant for over 10
-8-
years and called him “L.” On October 12, 2005, Crowder was in his backyard and heard
multiple gunshots coming east from his residence, then observed four teenagers run down
the alley. Detective Crowder recognized one of the teenagers to be Evan Odoms (Odoms).
Later that day, Detective Crowder escorted Odoms to the Area 2 detective division and
Odoms provided a statement, but was never contacted again.
¶ 41 Odoms testified he lived at 7128 South Champlain Avenue. Odoms has been friends with
defendant since he was seven years old and knows him as “L.” Odoms also knew Detective
Crowder, but not Steppe. Odoms further testified he has been friends with Collins for about
a year and a half and introduced him to defendant.
¶ 42 Odoms testified he and three friends were sitting on his porch at 3:45 p.m. on October
12, 2005, when he observed Collins walking across the street with five or six men, but
Collins did not acknowledge Odoms. Odoms also testified he went across the street to talk
to Collins but he turned and walked down a gangway with the men behind him. Odoms
further testified he only recognized one other person, “Big Mike,” whom he met through
Collins but did not know personally.
¶ 43 According to Odoms, he followed Collins and the others down the gangway toward the
backyard, but stopped before reaching the backyard, because he observed Collins being
physically attacked and Big Mike holding a handgun. Odoms testified he turned and ran.
After hearing gunshots, Odoms ran through the gangway by his house, into the alley where
he noticed Detective Crowder, and then continued down a few houses to a friend’s house.
¶ 44 Hours later, Odoms returned to his block and conversed with Detective Crowder. Odoms
and Detective Crowder then went to the police station on 111th Street and Ellis Avenue,
where Odoms spoke with Detectives Stover and Murphy. Odoms testified he provided a
statement regarding what he observed and what happened, while the detectives took notes.
According to Odoms, he was able to observe most of the yard and all the men for a couple
seconds but the detectives and Gillespie wanted him to say he could only see a portion of the
yard. Odoms testified he did not see defendant in the backyard.
¶ 45 Approximately a year later, Odoms met with the same detectives and Assistant State’s
Attorney (ASA) Alexandria Gillespie (Gillespie) to provide another statement. Odoms
testified ASA Gillespie transcribed Odoms’ statement, presented it to him for his review, and
allowed him to make changes before he signed it. Odoms did not recall Gillespie taking a
photograph of him and him signing it, but he identified himself in a picture and his signature
upon the photo. Odoms additionally testified he was really scared of the detectives because
they were intimidating.
¶ 46 According to Odoms, he informed detectives about Big Mike at both meetings, but
Odoms acknowledged the statement memorialized by Gillespie did not refer to Big Mike.
Odoms was unable to identify Big Mike in the array of photographs the detectives provided.
Odoms testified that after the second meeting with the detectives, he was never contacted.
¶ 47 Detective Stover testified in rebuttal that he interviewed Odoms. According to Detective
Stover, Odoms never wrote anything down and handed it to him, nor did Detective Stover
pressure Odoms to say anything. Detective Stover also testified Odoms informed him during
the initial interview that he had suspected Collins burglarized his house and was going to
-9-
confront him with this information. Detective Stover further testified Odoms informed him
he observed a “Big Mike” or “Fat Mike” holding a black handgun. Detective Stover
conducted a search for all “Mikes” in the area on the Chicago police department database and
submitted the photos based on Odoms’ information, but Odoms did not identify any photo
as that of the shooter. After Detective Stover confronted Odoms with defendant’s statement
of being at the scene, Odoms “put his head down and said, well, I don’t know, I didn’t see
him there.”
¶ 48 ASA Gillespie testified she interviewed Odoms on August 28, 2006, and memorialized
his statement regarding the Collins shooting. Before ASA Gillespie took his statement, she
was alone with Odoms and inquired whether he had any complaints about the way he was
treated by the police. According to ASA Gillespie, Odoms replied he had been treated well.
After she memorialized his statement, ASA Gillespie allowed Odoms to review and correct
the statement, had him initial each of the four pages and sign the statement. ASA Gillespie
testified she then took a photograph of Odoms, marked the date and time thereon and had it
signed by herself, a detective and Odoms. ASA Gillespie further testified Odoms never said
he observed a man named Big Mike with a handgun or fire a weapon.
¶ 49 Following closing arguments and the jury instructions, the jury deliberated and found
defendant guilty of first degree murder. The jury also found the State proved defendant
personally discharged a firearm that proximately caused Collins’ death. On January 4, 2010,
defendant filed a posttrial motion for a new trial. On July 13, 2010, following a hearing, the
trial court denied defendant’s posttrial motion and proceeded to a sentencing hearing. After
hearing evidence in aggravation and mitigation of the offense, the trial judge sentenced
defendant to 48 years in the Illinois Department of Corrections. On August 3, 2010,
defendant filed a motion to reconsider his sentence, which the trial judge denied the same
day. Defendant also filed a timely notice of appeal on August 3, 2010.
¶ 50 DISCUSSION
¶ 51 On appeal, defendant argues: (1) the admission of the victim’s statement made prior to
his death violated defendant’s right to confront the witnesses against him; (2) the trial judge
should have excluded the toolmark and firearms identification evidence as lacking a
scientific basis; (3) the trial court should have suppressed testimony regarding defendant’s
statement made in the lockup; (4) the trial court erred in admitting defendant’s statement that
he sold bullets to the victim; and (5) the jury venire was improperly questioned during voir
dire in violation of Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). We address
defendant’s arguments in turn.
¶ 52 The Admission of the Victim’s Statements
¶ 53 Defendant first argues the trial court’s decision to allow paramedics Sennett and Phillips
to testify regarding Collins’ statements that “Elliot” shot him and Elliot was from “71st and
Champlain” and shot him over a stolen gun violated defendant’s constitutional right to
confront the witnesses against him. See Crawford, 541 U.S. at 68. Our supreme court has
directed that, when reviewing the admissibility of out-of-court statements into evidence, we
-10-
must first determine whether those statements “ ‘pass[ ] muster as an evidentiary matter.’ ”
People v. Melchor, 226 Ill. 2d 24, 34 (2007) (quoting In re E.H., 224 Ill. 2d 172, 179 (2006)).
Only where the statements are admissible as an evidentiary matter may this court consider
“ ‘constitutional objections–including Crawford-based confrontation clause claims.’ ”
Melchor, 226 Ill. 2d at 34 (quoting In re E.H., 224 Ill. 2d at 179-80). This approach is
consistent with the general rule of avoiding constitutional questions where the case can be
decided on nonconstitutional grounds. Melchor, 226 Ill. 2d at 34. Accordingly, we first
consider whether Sennett’s testimony regarding Collins’ statement was admissible as an
evidentiary matter.
¶ 54 In this case, the trial court admitted the testimony as to Collins’ statements as dying
declarations. “A dying declaration qualifies as a hearsay exception because it is considered
trustworthy where the likelihood of fabrication is minimal due to the declarant’s belief that
death is imminent.” People v. Graham, 392 Ill. App. 3d 1001, 1006 (2009). A statement may
be admitted as a dying declaration when it is shown beyond a reasonable doubt, based upon
an examination of the totality of the facts and circumstances surrounding the declaration,
that: “(1) the declaration pertains to the cause or circumstance of the homicide; (2) the
declarant must believe that death is imminent; and (3) the declarant must possess mental
faculties sufficient to give an accurate statement about the circumstances of the homicide.”
People v. Georgakapoulos, 303 Ill. App. 3d 1001, 1009 (1999). A trial court’s decision to
admit a statement pursuant to the dying declaration exception to the hearsay rule is afforded
some deference and a reviewing court will not overturn that decision unless it is against the
manifest weight of the evidence. People v. Hatchett, 397 Ill. App. 3d 495, 502 (2009). A trial
court’s finding is against the manifest weight of the evidence if the opposite conclusion is
clearly evident. People v. Stiff, 391 Ill. App. 3d 494, 499 (2009).
¶ 55 In this case, after Sennett informed Collins he was going to die, Collins identified
“Elliot” from “71st and Champlain” as the shooter and stated Elliot accused him of stealing
a gun. Sennett and Phillips testified Collins was alert, able to respond to questions, and was
not administered painkillers. Defendant does not dispute the statements were dying
declarations. Given this record, we conclude the trial court’s ruling the statements were
admissible as dying declarations was not against the manifest weight of the evidence. Thus,
we turn to consider whether the admission of the dying declarations violated defendant’s
constitutional right to confront the witnesses against him.
¶ 56 The confrontation clause of the sixth amendment to the United States Constitution
provides that “[i]n all criminal prosecutions, the accused shall enjoy the right *** to be
confronted with the witnesses against him.” U.S. Const., amend. VI. This part of the sixth
amendment applies to the states through the fourteenth amendment. People v. Stechly, 225
Ill. 2d 246, 264 (2007). The issue of whether defendant’s sixth amendment confrontation
rights were violated involves a question of law, which we review de novo. People v. Lovejoy,
235 Ill. 2d 97, 141-42 (2009).
¶ 57 In Crawford, the United States Supreme Court held that out-of-court statements that are
testimonial in nature are barred by the confrontation clause, regardless of whether the trial
court finds the statements to be reliable, unless the witness is unavailable and the defendant
had a prior opportunity for cross-examination. Crawford, 541 U.S. at 68. The Crawford
-11-
Court, however, indicated that dying declarations may be an historical exception to the rule
against admission of hearsay testimony:
“The one deviation we have found involves dying declarations. The existence of that
exception as a general rule of criminal hearsay law cannot be disputed. [Citations.]
Although many dying declarations may not be testimonial, there is authority for
admitting even those that clearly are. [Citations.] We need not decide in this case whether
the Sixth Amendment incorporates an exception for testimonial dying declarations. If this
exception must be accepted on historical grounds, it is sui generis.” Id. at 56 n.6.
The United States Supreme Court recognized this long-standing exception to the exclusion
of testimonial dying declaration statements again in Giles v. California, 554 U.S. 353, 358
(2008) (“We have previously acknowledged that two forms of testimonial statements were
admitted at common law even though they were unconfronted. [Citation.] The first of these
were declarations made by a speaker who was both on the brink of death and aware that he
was dying. [Citation.]”). The United States Supreme Court, however, has not decided the
issue.
¶ 58 This court has held the admission of dying declarations that are testimonial in nature does
not violate the confrontation clause. People v. Graham, 392 Ill. App. 3d 1001, 1008 (2009);
People v. Gilmore, 356 Ill. App. 3d 1023, 1033 (2005). This court relied not only on the dicta
from Crawford and Giles, but also the California Supreme Court’s decision in People v.
Monterroso, 101 P.3d 956 (Cal. 2004). The Monterroso court reasoned:
“[I]f, as Crawford teaches, the confrontation clause ‘is most naturally read as reference
to the right of confrontation at common law, admitting only those exceptions established
at the time of the founding’ [citation], it follows that the common law pedigree of the
exception for dying declarations poses no conflict with the Sixth Amendment.”
Monterroso, 101 P.3d at 972 (quoting Crawford, 541 U.S. at 54).
Defendant suggests Graham and Gilmore are incompatible with the confrontation clause, but
the rationale this court has adopted from Monterroso explains why defendant’s argument
fails. Accordingly, in adherence to this court’s precedent, we conclude the dying declarations
were admissible in this case and the admission of those statements did not violate the sixth
amendment, even if those statements were testimonial.
¶ 59 Admission of Toolmark and Firearms Identification Evidence
¶ 60 Defendant next argues the trial court erred when it denied his motion in limine to exclude
expert testimony from firearms examiners that the cartridge cases found at the scene of
Collins’ shooting were fired from the same gun used in the Kent robbery. Defendant
contends toolmark and firearms identification analysis is not generally accepted in the
relevant scientific community and thus the expert testimony should have been excluded
under Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). Alternatively, defendant
argues that the court should have conducted a Frye hearing to determine whether
microscopic firearms comparison is a generally accepted technique within the relevant
scientific community.
¶ 61 The admission of scientific testimony in Illinois is governed by the Frye “general
-12-
acceptance” test. See People v. Caballes, 221 Ill. 2d 282, 334 n.1 (2006). Under Frye,
“scientific evidence is admissible at trial only if the methodology or scientific principle upon
which the opinion is based is ‘sufficiently established to have gained general acceptance in
the particular field in which it belongs.’ ” In re Commitment of Simons, 213 Ill. 2d 523, 529-
30 (2004) (quoting Frye, 293 F. at 1014). The Frye standard is limited to scientific
methodology that is considered “new” or “novel.” People v. McKown, 226 Ill. 2d 245, 257
(2007) (McKown I). General acceptance of a methodology “does not require that the
methodology *** be accepted by unanimity, consensus, or even a majority of experts.”
Simons, 213 Ill. 2d at 530; Donaldson v. Central Illinois Public Service Co., 199 Ill. 2d 63,
76-77 (2002), abrogated on other grounds by Simons, 213 Ill. 2d at 530. Under Frye, a court
inquires as to the general acceptance of a methodology, not the particular conclusion reached
by an examiner or the application of the methodology in a particular case. McKown I, 226
Ill. 2d at 255; Donaldson, 199 Ill. 2d at 77.
¶ 62 Our standard of review is de novo. Simons, 213 Ill. 2d at 530-31. “Under the de novo
standard of review, the reviewing court does not need to defer to the trial court’s judgment
or reasoning.” People v. Anderson, 2012 IL App (1st) 103288, ¶ 34. “De novo review is
completely independent of the trial court’s decision.” Id. “In conducting such de novo
review, the reviewing court may consider not only the trial court record but also, where
appropriate, sources outside the record, including legal and scientific articles, as well as court
opinions from other jurisdictions.” Simons, 213 Ill. 2d at 531.
¶ 63 Is Firearms Identification Analysis Scientific?
¶ 64 As a threshold matter, we observe that Frye applies only to scientific evidence.
McKown I, 226 Ill. 2d at 254. In this case, the trial judge denied defendant’s motion for a
Frye hearing, ruling a hearing was unnecessary because the firearms comparison is
performed visually and the methodology was not a scientific process. Defendant on appeal
argues the hearing was required.
¶ 65 In McKown I, a case we consider in further detail below, our supreme court considered
whether horizontal gaze nystagmus (HGN) testing was properly admitted without a Frye
hearing. Id. at 247. “The HGN test purportedly measures nystagmus, which has been defined
as an abnormal and involuntary rapid movement of the eyeballs up and down, or more
commonly, side to side.” Id. at 248. “Because alcohol consumption can cause nystagmus,
police officers have been trained to check a person’s eye movements when attempting to
determine if a driver has been driving while impaired by alcohol.” Id. at 249.
¶ 66 The McKown I court addressed the question of whether HGN testing is scientific as a
threshold issue. Id. at 254. The court observed that some jurisdictions have held that HGN
testing is not scientific, but the majority of jurisdictions addressing the issue have held HGN
testing to be scientific because it is based on a scientific principle which is not common
knowledge, i.e., consumption of alcohol causes the type of nystagmus measured by the HGN
test. See id. at 255 (and cases cited therein). The McKown I court agreed with the majority
view, ruling HGN testing is scientific because the results of an HGN test are meaningless to
the average person without expert interpretation. Id. at 256-57.
-13-
¶ 67 In this case, neither defendant nor the State has suggested toolmark and firearms
identification materials are understandable to the layperson absent expert testimony.
Furthermore, as our analysis of this issue will demonstrate, numerous courts–including those
skeptical of the methodology–have analyzed the subject as one involving scientific or
technical evidence. Accordingly, we shall do the same in this case.6
¶ 68 Novelty
¶ 69 We next consider the question of novelty. A determination under “the Frye test is
necessary only if the scientific principle, technique or test offered by the expert to support
his or her conclusion is ‘new’ or ‘novel.’ ” People v. McKown, 236 Ill. 2d 278, 282-83
(2010) (McKown II); see McKown I, 226 Ill. 2d at 257; Donaldson, 199 Ill. 2d at 78-79.
While recognizing that “a ‘new’ or ‘novel’ scientific technique is not always easy to identify,
especially in light of constant scientific advances in our modern era,” our supreme court has
instructed that generally a “scientific technique is ‘new’ or ‘novel’ if it is ‘original or
striking’ or does ‘not resembl[e] something formerly known or used.’ ” Donaldson, 199 Ill.
2d at 79 (quoting Webster’s Third New International Dictionary 1546 (1993)).
¶ 70 The State contends we may end our inquiry here because similar expert firearms
testimony has been generally admissible in Illinois courts since People v. Fisher, 340 Ill. 216,
240-41 (1930). Indeed, the State maintains the trial court and this court are both bound by
Fisher as controlling authority. Defendant, relying upon McKown I, argues that latent print
identification should be deemed “novel” because this type of microscopic firearms
comparison has long been used by firearms examiners, but the methodology, like HGN
testing, has been subject to recent court challenges and has not been subject to a Frye hearing
in Illinois. See McKown I, 226 Ill. 2d at 258.
¶ 71 Neither Fisher nor McKown I provides a definitive answer to the question of novelty in
this case. Fisher addressed the admissibility of this type of firearms examination, but did not
purport to apply Frye or determine whether the methodology was generally accepted. See
Fisher, 340 Ill. at 237-41. The McKown I court did not precisely indicate whether it found
HGN testing was novel because there was a history of legal challenges or because the courts
addressing those challenges had reached different conclusions regarding the general
acceptance of HGN testing. See McKown I, 226 Ill. 2d at 257. In any event, we will assume
for the sake of argument the ballistic comparison may be “novel,” and consider the
application of Frye and its progeny to the admission of ballistics evidence in Illinois. See
McKown I, 226 Ill. 2d at 254.
6
As this court may affirm the trial court’s rulings on the admission of evidence for any
reason found in the record (Donaldson v. Central Illinois Public Service Co., 313 Ill. App. 3d 1061,
1075 (2000)) and our standard of review is de novo (Simons, 213 Ill. 2d at 530-31), the trial judge’s
ruling on this point is not reversible error for the reasons set forth in this opinion.
-14-
¶ 72 Judicial Notice of General Acceptance
¶ 73 “A court may determine the general acceptance of a scientific principle or methodology
in either of two ways: (1) based on the results of a Frye hearing; or (2) by taking judicial
notice of unequivocal and undisputed prior judicial decisions or technical writings on the
subject.” McKown I, 226 Ill. 2d at 254. In this case, the trial court denied defendant’s motion
for a Frye hearing. Accordingly, we will consider whether an Illinois court may take judicial
notice of unequivocal and undisputed prior judicial decisions or technical writings on the
subject without conducting a Frye hearing.
¶ 74 Initially, we review in some detail two recent opinions from our supreme court regarding
judicial notice of general acceptance: Simons, which ruled judicial notice of general
acceptance was proper, and McKown I, which ruled a Frye hearing was required.
¶ 75 In Simons, our supreme court considered whether the trial court properly took judicial
notice of the general acceptance of actuarial risk assessment to assess sexually violent
offenders for a risk of recidivism. Simons, 213 Ill. 2d at 533. The Simons court, noting this
court was “sharply divided” on the question (id.), explained that “experts in at least 19 other
states rely upon actuarial risk assessment in forming their opinions on sex offenders’ risk of
recidivism” (id. at 535-36). Our supreme court concluded that “general acceptance of
actuarial risk assessment has been thoroughly litigated in several states.” Id. at 537.
Moreover, the Simons court was “unable to identify any state outside of Illinois in which
expert testimony based upon actuarial risk assessment was deemed inadmissible on the
question of sex offender recidivism.” Id. at 539. The court further observed that several
jurisdictions mandated actuarial risk assessment by statute or regulation and “note[d] that the
academic literature contains many articles confirming the general acceptance of actuarial risk
assessment by professionals who assess sexually violent offenders for risk of recidivism.”
Id. at 541. Ultimately, the Simons court concluded that “[t]aking all of this together–the case
law, the statutory law, and the academic literature,” it was “more than convinced that
actuarial risk assessment has gained general acceptance in the psychological and psychiatric
communities.” Id. at 543.
¶ 76 In contrast, in McKown I, as previously noted, the issue on appeal was whether the trial
court properly admitted the results of HGN testing without first holding a Frye hearing.
McKown I, 226 Ill. 2d at 247-48. Regarding the issue of general acceptance, the McKown I
court discussed divergent decisions of the Illinois Appellate Court. See id. at 263-65. The
court also surveyed appellate court decisions from foreign jurisdictions and found that they
were “as varied as the states that have made them” regarding the general acceptance of HGN
testing. Id. at 272. The court concluded that these decisions did “not present the kind of
unequivocal or undisputed viewpoint on the issue upon which a court can take judicial
notice.” Id.
¶ 77 Regarding the State’s argument that the court could take judicial notice of the general
acceptance of HGN testing “based on the technical writings on the subject,” the court
determined it could “consider not only the record, but also ‘sources outside the record,
including legal and scientific articles, as well as court opinions from other jurisdictions.’ ”
Id. (quoting Simons, 213 Ill. 2d at 531). The court observed “HGN testing appears to have
-15-
as many critics as it does champions.” Id. at 275. Without an “unequivocal or undisputed
viewpoint” from the scientific literature, the court decided it could not “take judicial notice
of the general acceptance of the HGN test as a reliable indicator of alcohol impairment based
on these technical writings.” Id.
¶ 78 Simons and McKown I thus instruct a court should examine the unanimity or division of
Illinois courts on the admissibility of a type of scientific evidence, then examine the
unanimity or division of other jurisdictions on the question, with an emphasis on whether the
issue has been thoroughly litigated. The court may also consider the unanimity or division
of opinion in the scientific and technical literature on the subject. With these principles in
mind, we turn to consider the admissibility of toolmark and firearms identification evidence.
¶ 79 General Acceptance of Toolmark and Firearms Identification
¶ 80 As previously noted, expert firearms testimony has been generally admissible in Illinois
courts for decades. Fisher, 340 Ill. at 240-41. Defendant does not identify any Illinois case
law casting doubt on the general admissibility of such testimony. Unlike McKown I, there
is no split of authority in Illinois on this issue.
¶ 81 Defendant relies upon three federal district court decisions addressing challenges to
toolmark and firearms identification methodology: United States v. Green, 405 F. Supp. 2d
104 (D. Mass. 2005); United States v. Montiero, 407 F. Supp. 2d 351, 365-72 (D. Mass.
2006); and United States v. Glynn, 578 F. Supp. 2d 567 (S.D.N.Y. 2008). None of these
cases ultimately support excluding microscopic firearms comparison evidence on the basis
of Frye.
¶ 82 In Green, the firearms expert repeatedly conceded that he relied on his subjective
judgment and “[t]here were no reference materials of any specificity, no national or even
local database on which he relied.” Id. at 107. The trial judge questioned the reliability of the
expert’s methodology. Id. at 119-20.7 Indeed, the judge opined: “The more courts admit this
type of toolmark evidence without requiring documentation, proficiency testing, or evidence
of reliability, the more sloppy practices will endure; we should require more.” Id. at 109. Yet
the judge in Green allowed the firearms testimony, based primarily on the unanimous judicial
acceptance of such testimony, but limited the expert to describing the similarities in the shell
casings he observed and barred the expert from opining the casings come from a specific
pistol “to the exclusion of every other firearm in the world.” (Internal quotation marks
omitted.) Id. at 124.
¶ 83 Similarly, in Montiero, the judge found the underlying principles behind firearm
identification may be scientifically valid, but “there is no reliable *** scientific methodology
which will currently permit the expert to testify that [a casing and a particular firearm are]
a ‘match’ to an absolute certainty, or to an arbitrary degree of statistical certainty.” Montiero,
407 F. Supp. 2d at 372. The Montiero judge found the witness qualified, but his testimony
7
In contrast, pursuant to Frye, Illinois courts are not concerned with the application of the
methodology in a particular case. McKown I, 226 Ill. 2d at 255; Donaldson, 199 Ill. 2d at 77.
-16-
was not adequately documented or subject to peer review. Id. at 374. The judge allowed
Montiero’s motion to exclude ballistics without prejudice. Id. at 375. In general, the
Montiero judge found the methodology of firearms identification is sufficiently reliable (id.
at 372) and would allow a qualified examiner who has documented and had a second
qualified examiner verify her results to testify based on those results that a cartridge case
matches a particular firearm to a reasonable degree of ballistic certainty (id. at 375). The
judge would bar testimony “that there is a match to an exact statistical certainty.” Id.
¶ 84 Likewise, in Glynn, the district court judge was concerned with the degree of subjectivity
involved in firearms identification. Glynn, 578 F. Supp. 2d at 572. The Glynn judge
explained that while other forms of expert testimony, including medical expert testimony,
may involve subjective judgments, “ballistics comparison lacks defining standards to a
degree that exceeds most other kinds of forensic expertise.” Id. at 574. Thus, the judge
concluded “ballistics examination not only lacks the rigor of science but suffers from greater
uncertainty than many other kinds of forensic evidence.” Id. Nevertheless, the judge
concluded the “methodology has garnered sufficient empirical support as to warrant its
admissibility.” Id. Accordingly, the judge ruled the ballistics evidence was admissible,
although the expert would be limited to testifying matches were “more likely than not.” See
id. at 574-75.
¶ 85 There are a number of other reported federal district court decisions involving similar
challenges. See, e.g., United States v. Otero, 849 F. Supp. 2d 425 (D.N.J. 2012); United
States v. Willock, 696 F. Supp. 2d 536 (D. Md. 2010); United States v. Taylor, 663 F. Supp.
2d 1170 (D.N.M. 2009). A number of these courts engaged in lengthy and detailed hearings,
involving multiple witness and the presentation of documentary evidence. Otero, 849 F.
Supp. 2d at 429 (three-day hearing at which the parties “submitted various documents”);
Taylor, 663 F. Supp. 2d at 1171 (two-day hearing); Montiero, 407 F. Supp. 2d at 355 (six-
day evidentiary hearing and “extensive documentary record replete with photographs,
demonstratives, and journal articles”). In none of these judicial decisions–including those
specifically cited by defendant in this appeal–did a court rule traditional microscopic firearms
comparison testimony was generally inadmissible.
¶ 86 Of course, in federal courts, admission of expert testimony is governed by the standards
set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), whereas
Illinois adheres to the Frye test. Yet in Daubert, the United States Supreme Court affirmed
the continued relevance of whether the technique at issue is generally accepted within the
scientific community. Id. at 594. “Widespread acceptance can be an important factor in
ruling particular evidence admissible, and ‘a known technique which has been able to attract
only minimal support within the community’ [citation] may properly be viewed with
skepticism.” Id. (quoting United States v. Downing, 753 F.2d 1224, 1238 (3d Cir. 1985)).
¶ 87 Thus, some of the aforementioned federal courts have specifically mentioned or
discussed the issue of general acceptance in ruling on recent challenges to toolmark and
firearms identification analysis. For example, in Otero, the court observed the AFTE theory
of firearms and toolmark identification is widely accepted in the forensic community and
specifically in the community of firearm and toolmark examiners. Otero, 849 F. Supp. 2d at
435. The Willock court similarly found the AFTE theory of firearms-related toolmark
-17-
identification has been “generally accepted within the field of toolmark examiners.” Willock,
696 F. Supp. 2d at 571. In Taylor, the court found the use of pattern matching underlying the
AFTE theory “is generally accepted among firearms examiners in the field.”8 Taylor, 663 F.
Supp. 2d at 1178. The Montiero court found it “clear that the community of firearm and
toolmark examiners accepts the current identification methodology as reliable” and “the
community of toolmark examiners seems virtually united in their acceptance of the current
technique.” Montiero, 407 F. Supp. 2d at 372.
¶ 88 Neither the defendant nor the State addresses the case law from other states adhering to
the Frye test, but our review of such cases reveals the results are the same as those in the
federal courts. For example, in Fleming v. State, 1 A.3d 572 (Md. Ct. Spec. App. 2010), the
trial court held a three-day Frye hearing on firearms toolmark identification and concluded
the traditional comparative microscope matching technique was admissible. Id. at 575.9 On
appeal, the Fleming court ruled that even if the admission of the evidence was not harmless
error, the appellate court would hold the trial court did not err in admitting such evidence.
Id. at 585. The court concluded, notwithstanding the current debate over the issue, courts
have consistently found the traditional method of firearms toolmark analysis to be generally
accepted within the scientific community and reliable. Id. at 590.
¶ 89 Similarly, in Commonwealth v. Whitacre, 2005 Pa. Super. 221, the Superior Court of
Pennsylvania affirmed the trial judge’s decision to admit comparison microscope analysis
(albeit following a more cursory hearing than in Fleming), ruling the methodology was
generally accepted within the scientific community consisting of firearms experts and a
number of significant governmental bodies within and without Pennsylvania. Id. ¶ 14. In
Jones v. United States, 27 A.3d 1130 (D.C. 2011), the District of Columbia Court of Appeals
affirmed the trial judge’s decision to not conduct a Frye hearing regarding firearms pattern
matching, concluding none of the evidence proffered suggested the methodology was no
longer generally accepted. Id. at 1138. In People v. Givens, 912 N.Y.S.2d 855 (N.Y. Sup. Ct.
2010), the trial judge, after reviewing the case law, scholarly reports and articles, denied the
defense request to exclude firearms and toolmark identification or conduct a Frye hearing,
based primarily on the unanimous judicial acceptance of such testimony. Id. at 857.
¶ 90 Defendant also relies upon the criticism of the methodology found in scholarly reports
and articles. National Research Council, Committee on Identifying the Needs of the Forensic
Sciences Community et al., Strengthening Forensic Science in the United States: A Path
Forward (2009), available at http://www.nap.edu/catalog.php?record_id=12589 (hereinafter,
NRC Report); Richard Grzybowski et al., Firearm/Toolmark Identification: Passing the
Reliability Test Under Federal and State Evidentiary Standards, 35 AFTE J. 209, 213
(2003). Federal and state courts considering these materials nevertheless have found
8
The trial court also found a newer method of pattern matching, involving consecutively
matching striae, was generally accepted among firearms examiners Taylor, 663 F. Supp. 2d at 1178.
9
The trial court, however, excluded testimony based on the consecutively matching striae
technique, finding it was not generally accepted. Fleming, 1 A.3d at 575-76. The consecutively
matching striae technique is not at issue in this appeal.
-18-
microscopic firearms comparison methodology to be generally accepted and declined to
exclude the type of testimony at issue in this case. See, e.g., Otero, 849 F. Supp. 2d at 427,
430, 438 (citing NRC Report, supra at 150, and Grzybowski et al., supra at 211); Willock,
696 F. Supp. 2d at 555, 571 (NRC Report); Taylor, 663 F. Supp. 2d at 1177-78,1180 (NRC
Report); Monteiro, 407 F. Supp. 2d at 362-63, 367, 372 (Grzybowski et al., supra at 213);
Jones, 27 A.3d at 1137 n.7 (NRC Report); Fleming, 1 A.3d at 104, 106 (NRC Report). In
Glynn, the judge relied in part on a different NRC report to conclude the “methodology has
garnered sufficient empirical support as to warrant its admissibility.” Glynn, 578 F. Supp. 2d
at 574 (citing Daniel L. Cork et al., Ballistic Imaging 30-46 (2008)). Although the scholarly
materials cited by defendant and the defendants in other cases may raise substantial criticisms
of the methodology at issue in this case, no court has found these critiques sufficient to
conclude the methodology is no longer generally accepted.
¶ 91 In short, in recent years, federal and state courts have had occasion to revisit the
admission of expert testimony based on toolmark and firearms identification methodology.
Such testimony has been the subject of lengthy and detailed hearings, and measured against
the standards of both Frye and Daubert. Courts have considered scholarly criticism of the
methodology, and occasionally placed limitations on the opinions experts may offer based
on the methodology. Yet the judicial decisions uniformly conclude toolmark and firearms
identification is generally accepted and admissible at trial. Accordingly, we conclude the trial
court did not err in ruling the testimony in this case was admissible and did not require a
Frye hearing, particularly where the trial judge barred the witnesses from testifying their
opinions were “within a reasonable degree of scientific certainty.”
¶ 92 Other-Crimes Evidence
¶ 93 Defendant further argues the trial court erred in admitting evidence that defendant stated
he sold bullets to Collins. Defendant maintains the testimony was irrelevant, other-crimes
evidence. Under the common law, other-crimes evidence generally is inadmissible if offered
only to demonstrate the defendant’s propensity to commit the charged crime. People v.
Donoho, 204 Ill. 2d 159, 169 (2003). Evidence regarding other crimes generally is admissible
if offered to prove any relevant fact other than propensity. Id. at 170. For example, such
other-acts evidence is admissible to show:
“ ‘modus operandi, motive, knowledge, intent, absence of mistake or accident, [the]
defendant’s state of mind, absence of an innocent mind frame or the presence of criminal
intent, circumstances or context of [the] defendant’s arrest, placement of [the] defendant
in proximity to the time and place of the crime, identification of the weapon used in a
crime, consciousness of guilt, to show a common design, scheme or plan, circumstances
of a crime charged that would otherwise be unclear, whether a crime charged was
actually committed, opportunity or preparation, a defendant’s dislike or attitude toward
the victim, to explain an otherwise implausible fact relating to the crime charged, to
contradict on rebuttal a defendant’s denials, to disprove a defense of entrapment and to
disprove an alibi defense.’ ” People v. Moser, 356 Ill. App. 3d 900, 913 (2005) (quoting
People v. Millighan, 265 Ill. App. 3d 967, 972-73 (1994)).
-19-
In this case, the State introduced the testimony at issue to show consciousness of guilt. “A
false exculpatory statement is ‘probative of a defendant’s consciousness of guilt.’ ” People
v. Hommerson, 399 Ill. App. 3d 405, 410 (2010) (quoting People v. Shaw, 278 Ill. App. 3d
939, 951 (1996)). The State argued defendant’s statement he sold bullets to Collins was a
false exculpatory statement because defendant wanted to avoid revealing any dispute
between himself and Collins regarding a gun. We also note defendant’s purported sale of
bullets also would tend to support defendant’s claim Collins had confided in him that other
individuals were “f***ing with him”– a claim which, if believed, would divert attention from
defendant as a suspect in the shooting. Accordingly, we agree with the State that defendant’s
statement was relevant and admissible to show consciousness of guilt.
¶ 94 The Admission of Police Testimony Regarding Defendant’s Statement
¶ 95 Defendant additionally argues the trial court should have suppressed testimony regarding
defendant’s statement that he was present at the shooting made in the 5th District lockup
area. The State responds defendant has forfeited this issue by failing to raise it in his posttrial
motion. People v. Thompson, 238 Ill. 2d 598, 611-13 (2010). In general, failure to raise an
issue in a posttrial motion forfeits the issue on appeal. E.g., People v. Johnson, 238 Ill. 2d
478, 484 (2010) (citing People v. Enoch, 122 Ill. 2d 176, 186 (1988)). Defendant cites People
v. Torres, 283 Ill. App. 3d 281, 289 (1996), for the proposition that the issue was properly
preserved for review by his written motion to suppress which resulted in an evidentiary
hearing. The Torres court, however, recognized forfeiture existed in that case. Id. Moreover,
Torres relied on People v. Dickerson, 69 Ill. App. 3d 825, 828 (1979), which predates Enoch
and its progeny. When a defendant fails to challenge the denial of his motion to suppress in
a posttrial motion, any claimed error relating to the motion to suppress is forfeited. People
v. Cosby, 231 Ill. 2d 262, 271-73 (2008).
¶ 96 Defendant argues this issue may be reviewed as plain error. Illinois Supreme Court Rule
615(a) creates an exception to the forfeiture rule by allowing courts of review to note “[p]lain
errors or defects affecting substantial rights.” Under Illinois’ plain error doctrine, a reviewing
court may consider a forfeited claim when:
“ ‘(1) a clear or obvious error occurred and 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) a clear or obvious error occurred and that 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.’ ” Johnson, 238 Ill.
2d at 484 (quoting People v. Piatkowski, 225 Ill. 2d 551, 565 (2007)).
The plain error doctrine is intended to ensure that a defendant receives a fair trial, but it does
not guarantee every defendant a perfect trial. Johnson, 238 Ill. 2d at 484. Rather than
operating as a general savings clause, it is construed as a narrow and limited exception to the
typical forfeiture rule applicable to unpreserved claims. Id. The burden of persuasion rests
with the defendant under both prongs of the plain error analysis. People v. Sargent, 239 Ill.
2d 166, 190 (2010). The ultimate question of whether a forfeited claim is reviewable as plain
error is a question of law reviewed de novo. Johnson, 238 Ill. 2d at 485.
-20-
¶ 97 Generally, the first step of plain-error review is to determine whether any error occurred.
Thompson, 238 Ill. 2d at 613. In this case, however, defendant solely relies on the first prong
of plain-error review, i.e., a clear or obvious error occurred and the evidence is so closely
balanced that the error alone threatened to tip the scales of justice against the defendant.
Where the only basis for plain-error review is a claim that the evidence was closely balanced,
we need not first look at whether an error occurred. People v. White, 2011 IL 109689, ¶ 148.
“Where the only basis proffered for plain-error review is a claim that the evidence is closely
balanced, an assessment of the impact of an alleged evidentiary error is readily made after
reading the record.” Id. “When it is clear that the alleged error would not have affected the
outcome of the case, a court of review need not engage in the meaningless endeavor of
determining whether error occurred.” Id.
¶ 98 In this case, Collins identified the shooter as “Elliot” from “71st and Champlain.”
Although the defense produced voting records indicating other individuals with the first or
last name of Elliot lived in the vicinity, the State adduced evidence that a database search
indicated defendant was the sole Elliot living in the vicinity of 71st Street and Champlain
Avenue. Only one of the Elliots identified by the defense resided on Champlain Avenue; he
was born in 1912. A trier of fact could reasonably conclude a man of advanced age was
unlikely to have been involved in a dispute with Collins over a stolen gun. In any event, there
was no evidence that any of the Elliots identified by the defense had any relationship to
Collins or to the incident. In contrast, defendant acknowledged to police he knew Collins and
Odoms confirmed defendant knew Collins. Kent identified defendant as the shooter in the
Kent robbery; the expert testimony established the cartridge cases in the Kent robbery were
fired by the same weapon which fired the cartridge cases recovered at the scene in this case.
¶ 99 The remainder of the defense case did not significantly alter this balance of the evidence.
The defense produced testimony from Steppe, who did not recognize Collins or any of the
individuals he observed running from the scene of the shooting. Detective Crowder
recognized only Odoms as one of the individuals at the scene. Odoms had turned away from
the scene when he heard gunshots and thus did not witness the shooting. Odoms provided
statements to the police referring to Big Mike, but never stated to ASA Gillespie that Big
Mike had a gun or identified Big Mike as the shooter. Williams testified defendant was at
her house at approximately 4 to 4:20 p.m. on the date of the shooting, well after the
paramedics were dispatched at 3:57 p.m. Given this record, we conclude, even if the trial
court erred, the evidence was not closely balanced and defendant cannot establish plain error
in this case.
¶ 100 The Questioning of the Jury Venire
¶ 101 Lastly, defendant contends he was denied a fair trial on the ground that the trial court
failed to question prospective jurors in accordance with the amended version of Illinois
Supreme Court Rule 431(b) (eff. May 1, 2007). Supreme Court Rule 431(b) imposes a
sua sponte duty on trial courts to question prospective jurors, individually or in a group, as
to whether they understood and accepted the principles outlined in People v. Zehr, 103 Ill.
2d 472, 477 (1984), “that a defendant is presumed innocent, that he is not required to offer
-21-
any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and
that his failure to testify in his own behalf cannot be held against him.” See People v.
Haynes, 399 Ill. App. 3d 903, 912 (2010).
¶ 102 The State responds defendant forfeited this issue by failing to object to the trial judge’s
questioning of the venire as not substantially complying with Rule 431(b) at the time or in
the posttrial motion. Defendant again argues for plain error review, asserting the evidence
in this case was closely balanced. For the reasons previously stated, we conclude the
evidence was not closely balanced in this case. Accordingly, defendant’s argument fails.
¶ 103 CONCLUSION
¶ 104 For all of the aforementioned reasons, the judgment of the circuit court of Cook County
is affirmed.
¶ 105 Affirmed.
-22-