People v. Solomon-Bey , 2021 IL App (2d) 190742-U ( 2021 )

2021 IL App (2d) 190742-UNo. 2-19-0742
Order filed September 9, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 17-CF-1536
)
KAREEM M. SOLOMON-BEY, ) Honorable
) Kathryn D. Karayannis,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BRENNAN delivered the judgment of the court.
Justices Hudson and Birkett concurred in the judgment.
ORDER
¶1 Held: The plain-error rule did not excuse forfeiture of claim that defendant’s
confrontation rights were violated when the State’s forensic expert testified as to
the conclusions of a nontestifying forensic expert that a substance produced by the
defendant during a controlled buy was cocaine. Though it was error to allow the
testimony without the ability to cross-examine the authoring expert, there was
sufficient circumstantial evidence that the substance was cocaine such that the error
was harmless.
¶2 Following a jury trial, defendant, Kareem M. Solomon-Bey, was convicted of three counts
of unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 2016)) and sentenced
to three concurrent four-year terms of probation. Defendant timely appeals. Regarding one of the
2021 IL App (2d) 190742-Ucounts, he contends that he was deprived of his right to a fair trial where he could not confront the
expert who prepared the laboratory test result used to convict him. We affirm.
¶3 I. BACKGROUND
¶4 Defendant was charged with delivering cocaine on four occasions: December 8, 2016;
December 13, 2016; December 20, 2016; and January 4, 2017. All four transactions were between
Benjamin Williams, a confidential informant working with the Elgin Police Department, and a
man Williams knew as “Twin.” He later identified “Twin” as defendant. For each transaction,
Williams wore a recording device, or “wire.” The device recorded only video, but no audio for
the December 8, 2016, transaction; it recorded audio and video of the remaining transactions.
¶5 Defendant represented himself at trial. Williams and several police officers described the
four transactions as follows. On December 8, 2016, Elgin Police Department detectives Marcy
Kogut and Adam Arnold met with Williams, searched him, and gave him $100 in prerecorded
funds to purchase cocaine. In front of Kogut, Williams called a phone number. Defendant
answered, and they arranged a meeting. Kogut and Arnold dropped Williams off near Center and
Cherry Streets, where he had arranged to meet defendant. Williams testified that defendant later
drove up in a Buick LeSabre. Williams got into the car and gave defendant the $100. Defendant
handed Williams a plastic bag containing a substance that Williams testified was cocaine. A short
time later, Williams got out of the car, and defendant drove away. When Kogut and Arnold picked
Williams up, he handed the bag to Kogut.
¶6 On December 13, 2016, Williams called the same number and arranged to purchase $100
worth of crack cocaine from defendant. Kogut and Lieutenant Chris Jensen met with Williams,
searched him, and gave him $100 to purchase cocaine. After Kogut dropped Williams off near
Center and Cherry Streets, defendant drove up in the LeSabre. As before, Williams got into the
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2021 IL App (2d) 190742-Ucar and gave defendant the $100. Defendant gave him a plastic bag of a white substance that
Williams testified was cocaine. Williams then exited the car. When Kogut picked him up after
the exchange, Williams gave her the bag. Two surveillance officers identified defendant as the
driver of the LeSabre.
¶7 On December 20, 2016, Williams again called the same number in front of Kogut and
arranged to buy $150 worth of crack cocaine. Detective Mike Martino searched Williams before
he dropped Williams off to meet with defendant. Shortly after they dropped him off, Williams
called Kogut and told her that she forgot to give him the money to buy the drugs. Kogut and
Martino drove back to the area and gave Williams $150. Thereafter, defendant arrived in the
LeSabre and Williams got in the car. Once inside, Williams gave defendant the money and
defendant gave Williams “some crack” in a plastic bag. After that, Williams got out of the car and
waited for Kogut to pick him up. When Kogut and Martino arrived, Williams got into the car and
handed Kogut the bag.
¶8 On January 4, 2017, Williams again called the same number in front of Kogut and arranged
to buy crack cocaine from defendant for $150. Sergeant Mark Whaley searched Williams and
Kogut gave him $150. Kogut and Whaley dropped Williams off near Center and Cherry Streets.
As before, defendant drove up in the LeSabre. Williams got in and gave defendant the money.
Defendant gave Williams what he testified was crack cocaine in a plastic bag. Williams then left
the car. Kogut and Whaley returned and picked up Williams. Williams got into the car and gave
the bag to Kogut.
¶9 The State also called Edward McGill and Martin Skelcy, both forensic scientists with the
Illinois State Police. Defendant accepted each as an expert in the testing and identification of
controlled substances.
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2021 IL App (2d) 190742-U¶ 10 McGill testified that he analyzed the substance in the bag Williams gave Kogut on January
4, 2017. The substance weighed 0.9 grams and tested positive for cocaine.
¶ 11 Skelcy testified that he analyzed the substances from the controlled buys on December 8,
2016, and December 13, 2016. The former weighed 0.3 grams, while the latter weighed 0.7 grams.
Both tested positive for cocaine.
¶ 12 Skelcy further testified that he had reviewed a report from Sara Anderson, another state
forensic scientist. Defendant interjected a hearsay objection, which the court overruled. Skelcy
testified that Anderson had analyzed the substance obtained during the December 20, 2016,
purchase. Skelcy identified People’s exhibit No. 30 as Anderson’s report. He noted that Anderson
tested a “chunky powder” that weighed 0.8 grams. She performed the same tests that Skelcy
performed on the other two samples. She reported that the gas-chromatograph-mass-spectrometer
test was positive for cocaine. Based on his training and experience, Skelcy agreed with Anderson’s
findings that the sample contained cocaine.
¶ 13 The State also called a digital forensics examiner, who linked the number Williams dialed
to defendant’s phone.
¶ 14 The jury found defendant not guilty of the count related to the December 8, 2016, sale, but
found him guilty of the remaining counts. The court sentenced him to three concurrent four-year
terms of probation. Defendant timely appeals.
¶ 15 II. ANALYSIS
¶ 16 Defendant contends that, as to the December 20, 2016, sale, he was deprived of his right
to confront witnesses when Anderson did not testify about her testing of the alleged cocaine. He
argues that, by any fair definition, Anderson’s report was testimonial; therefore, his confrontation
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2021 IL App (2d) 190742-Urights were violated because she was unavailable at trial, and he did not have a prior opportunity
to cross-examine her.
¶ 17 Defendant acknowledges that, although he contemporaneously objected to Skelcy’s
hearsay testimony about Anderson’s report, he did not include the issue in a posttrial motion, thus
forfeiting it. However, he contends that we should review the issue as plain error.
¶ 18 The State responds that the report was not testimonial. The State alternatively contends
that, even if the report itself were testimonial, Skelcy’s testimony about the report was admissible
under Illinois Rule of Evidence 703, as the report merely formed the basis of his opinion that the
substance contained cocaine. The State finally contends that any error was harmless or that, under
a plain-error analysis, any error did not amount to plain error.
¶ 19 To preserve a purported error for appeal, a defendant must object at trial and raise the issue
in a posttrial motion. People v. Sebby, 2017 IL 119445, ¶ 48. The failure to do either results in
forfeiture. Id. However, Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) provides that
substantial or plain errors “may be noticed although they were not brought to the attention of the
trial court.” Id. Illinois courts have identified two instances when it is appropriate to do so:
(1) when “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) when “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.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007); see People v.
Herron, 215 Ill. 2d 167, 186-87 (2005). “Under both prongs of the plain-error doctrine, the
defendant has the burden of persuasion.” People v. Hillier, 237 Ill. 2d 539, 545 (2010). The first
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2021 IL App (2d) 190742-Ustep in deciding whether plain error occurred is to determine if there was a clear or obvious error
at all. Sebby, 2017 IL 119445, ¶ 49.
¶ 20 In Crawford v. Washington, 541 U.S. 36, 59 (2004), the United States Supreme Court held
that a “testimonial” statement is inadmissible against a defendant unless the declarant is
unavailable and the defendant has had a prior opportunity for cross-examination. A statement is
testimonial when its “primary purpose *** is to establish or prove past events potentially relevant
to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006).
¶ 21 In three subsequent cases, the Court considered the application of Crawford to forensic
testing. In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Court considered a
Massachusetts procedure by which the results of chemical testing could be introduced by way of
a forensic analyst’s sworn certificate without the need for the analyst to testify. The Court held
that the certificates in that case were testimonial and could not be introduced into evidence unless
the analyst testified. Id. at 310-11.
¶ 22 Two years later, in Bullcoming v. New Mexico, 564 U.S. 647 (2011), the Court held that
forensic test results could not be introduced through the “surrogate testimony” of a forensic analyst
who did not personally perform or at least observe the test in question. Id. at 652. There, the
defendant was charged with driving while intoxicated after a laboratory report showed that his
blood-alcohol concentration (BAC) was well above the legal limit. Id. at 651. On the day of trial,
the prosecution stated that it would not be calling the analyst who performed the test, Curtis Caylor,
because he had recently been “ ‘put on unpaid leave.’ ” Id. at 655. Instead, the State offered the
report as a business record through the testimony of another analyst, Gerasimos Razatos, who
neither observed nor reviewed Caylor’s analysis. Id. The Court noted that the “surrogate
testimony of the kind Razatos was equipped to give could not convey what Caylor knew or
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2021 IL App (2d) 190742-Uobserved about the events his certification concerned, i.e., the particular test and testing process
he employed.” Id. at 661. “Nor could such surrogate testimony expose any lapses or lies on the
certifying analyst’s part.” Id. at 661-62. The Court continued:
“Significant here, Razatos had no knowledge of the reason why Caylor had been placed on
unpaid leave. With Caylor on the stand, Bullcoming’s counsel could have asked questions
designed to reveal whether incompetence, evasiveness, or dishonesty accounted for
Caylor’s removal from his workstation. Notable in this regard, the State never asserted
that Caylor was ‘unavailable’; the prosecution conveyed only that Caylor was on
uncompensated leave. Nor did the State assert that Razatos had any ‘independent opinion’
concerning Bullcoming’s BAC.” Id. at 662.
¶ 23 Most recently, in Williams v. Illinois, 567 U.S. 50 (2012), a plurality of the Court held that
the defendant’s confrontation rights were not violated when an expert witness testified that a DNA
profile prepared by an outside laboratory, Cellmark, matched a profile that the State produced from
a sample of the defendant’s blood. The lead opinion noted that, in Melendez-Diaz and Bullcoming,
the reports at issue were “the equivalent of affidavits made for the purpose of proving the guilt of
a particular criminal defendant at trial.” Id. at 84. By contrast, the DNA profile “was not prepared
for the primary purpose of accusing a targeted individual.” Id. In other words, its “primary
purpose ***, viewed objectively, was not to accuse [the defendant] or to create evidence for use
at trial.” Id. Rather, its purpose “was to catch a dangerous rapist who was still at large, not to
obtain evidence for use against [the defendant], who was neither in custody nor under suspicion at
that time.” Id. Moreover, the report was admissible to the extent that it formed part of the basis
of the testifying expert’s opinion that the DNA profiles matched. Id. at 71-73. See Ill. R. Evid.
703 (eff. Jan. 1, 2011); cf. Fed. R. Evid. 703 (eff. Dec. 1, 2011).
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2021 IL App (2d) 190742-U¶ 24 The plurality opined that admitting the reports of nontestifying experts under these
circumstances would not lead to widespread Crawford violations, as adequate safeguards exist:
“First, trial courts can screen out experts who would act as mere conduits for hearsay by
strictly enforcing the requirement that experts display some genuine ‘scientific, technical,
or other specialized knowledge [that] will help the trier of fact to understand the evidence
or to determine a fact in issue.’ Second, experts are generally precluded from disclosing
inadmissible evidence to a jury. Third, if such evidence is disclosed, the trial judges may,
and under most circumstances must, instruct the jury that out-of-court statements cannot
be accepted for their truth, and that an expert’s opinion is only as good as the independent
evidence that establishes its underlying premises. And fourth, if the prosecution cannot
muster any independent admissible evidence to prove the foundational facts that are
essential to the relevance of the expert’s testimony, then the expert’s testimony cannot be
given any weight by the trier of fact.” [Citations omitted.] Williams, 567 U.S. at 80-81.
¶ 25 Justice Thomas provided the fifth vote. In his separate concurrence, he agreed that
Cellmark’s report lacked the “ ‘formality and solemnity’ ” to be considered testimonial for
purposes of the confrontation clause. Id. at 103-04 (Thomas, J, concurring in the judgment)
(quoting Michigan v. Bryant, 562 U.S. 344, 378 (2011) (Thomas, J., concurring in the judgment).
The dissent argued that a statement is testimonial if its primary purpose is “providing evidence.”
Id. at 135 (Kagan, J., dissenting). Because the DNA profile was intended to serve as evidence in
a possible future criminal trial, it was testimonial. Id.
¶ 26 Our supreme court has subsequently considered forensic evidence in the context of the
confrontation clause. In People v. Leach, 2012 IL 111534, ¶ 120, the court summarized its
approach in the wake of Williams:
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2021 IL App (2d) 190742-U“When we must determine whether a forensic report is testimonial in nature, the
Williams plurality instructs us to apply an objective test, looking for ‘the primary purpose
that a reasonable person would have ascribed to the statement, taking into account all of
the surrounding circumstances.’ [Citation.] If this inquiry reveals that the forensic report
was ‘made for the purpose of proving the guilt of a particular criminal defendant at trial’
[citation], it is testimonial.”
¶ 27 In Leach, the court held that an autopsy report was not testimonial and, therefore, its
admission at the defendant’s trial did not violate the confrontation clause. The court noted that
(1) coroners are required by law to investigate all suspicious deaths regardless of whether they are
being investigated as homicides; (2) autopsy reports are not generally prepared for the purpose of
accusing a targeted individual, and (3) the report at issue did not specifically link the defendant to
the crime. Id. ¶¶ 120-27. In People v. Barner, 2015 IL 116949, ¶¶ 63-64, our supreme court
concluded that a DNA profile, much like the one at issue in Williams, was not testimonial.
¶ 28 In People v. Lewis, 2019 IL App (1st) 160864, ¶ 18, a state firearms identification expert
testified that he “agreed with” the conclusions of another firearms examiner, who was on medical
leave at the time of trial. The witness testified that his colleague properly followed all procedures.
Id. ¶ 17. The appellate court concluded that this testimony violated the defendant’s right to
confront the expert who conducted the testing. Id. ¶ 37.
¶ 29 With the above cases in mind, we conclude that Anderson’s report was clearly
“testimonial.” Although defendant was not yet in custody when Anderson tested the substance,
defendant was being “targeted” for prosecution (Williams, 567 U.S. at 84), and the testing was
done for the purpose of proving his guilt at a subsequent trial. Moreover, given the protocols for
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2021 IL App (2d) 190742-Uforensic testing and Anderson’s preparation of a formal, signed report, there was sufficient
formality and solemnity to satisfy Justice Thomas’s “testimonial” test.
¶ 30 The State insists that the use of the report was not testimonial because Anderson’s report
was not itself admitted into evidence. Rather, the State argues that Skelcy reached an independent
expert opinion that the substance tested contained cocaine based upon his review of Anderson’s
report. According to the State, this was permissible because the report contained the facts and data
upon which he relied in rendering his own expert opinion. See Ill. R. Evid. 703 (eff. Jan. 1, 2011)
(allowing the admission into evidence of the facts or data upon which an expert bases an opinion).
In arguing that this practice does not run afoul of the confrontation clause, the State also refers us
to Justice Sotomayor’s concurrence in Bullcoming where she observes, “We would face a different
question if asked to determine the constitutionality of allowing an expert witness to discuss others’
testimonial statements if the testimonial statements were not themselves admitted as evidence.”
Bullcoming, 564 U.S. at 673 (Sotomayor, J., concurring).
¶ 31 Defendant, however, disputes the State’s characterization of Skelcy’s testimony.
According to defendant, Skelcy merely testified to Anderson’s conclusions and stated that he
agreed with her. We need not resolve this issue, however, given the State’s alternative argument
that any error in admitting Skelcy’s testimony about Anderson’s testimonial report was harmless.
As the State correctly observes, if the error is harmless, it cannot amount to first-prong plain error.
We combine the analyses, because “if an error was harmless, it most certainly cannot rise to the
level of plain error.” Leach, 2012 IL 111534, ¶ 141.
¶ 32 In considering whether a given error is harmless, a reviewing court may (1) focus on the
error itself to determine if it might have contributed to the conviction; (2) examine the other,
properly admitted evidence to see whether it overwhelmingly supports the conviction; or
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2021 IL App (2d) 190742-U(3) determine whether the improperly admitted evidence is merely cumulative of or duplicates
properly admitted evidence. Barner, 2015 IL 116949, ¶ 71.
¶ 33 The State likens this case to Leach, where the court concluded that, even if the autopsy
report in question were testimonial, allowing testimony about it was harmless error because the
cause and manner of the victim’s death were not at issue. The defendant admitted killing his wife
but contended that he had a less culpable mental state than that for first-degree murder. Leach,
2012 IL 111534, ¶ 145. The State argues that, likewise, defendant here never disputed that the
substance Williams received was cocaine; rather, he argued it was a case of mistaken identity.
Thus, the State argues that the testimony about test results was harmless because it did not directly
impact defendant’s theory of defense. This argument, however, ignores the State’s burden to prove
beyond a reasonable doubt that the substance was in fact cocaine.
¶ 34 Defendant contends that, other than Skelcy’s “surrogate expert testimony,” the State
presented no evidence that the substance delivered on December 20, 2016, actually contained
cocaine. Thus, according to defendant, the State’s evidence was insufficient to prove an element
of the offense, rendering the evidence “closely balanced.” Careful consideration of the record,
however, belies this contention.
¶ 35 While the State must, of course, prove the identity of an alleged controlled substance, it
need not do so through chemical testing. People v. Eichelberger, 189 Ill. App. 3d 1020, 1027
(1989) (citing People v. Robinson, 14 Ill. 2d 325, 330-31 (1958)). Rather, as in other cases, the
State can prove its case by circumstantial evidence. Id. Evidence that will support a conviction
includes:
“ ‘The exorbitant price paid for the small amount of substance; the fact it was a powder;
that [the witness] had been a user and had had previous transactions in narcotics with the
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2021 IL App (2d) 190742-U[defendant]; * * * that [the witness] sold the substance to his customers as [a controlled
substance] and that none of them “kicked” or complained ***.’ ” Id. at 1028 (quoting
Toliver v. United States, 224 F.2d 742, 745 (9th Cir.1955)).
¶ 36 In People v. Harrison, 26 Ill. 2d 377, 379 (1962), the supreme court held that the trial court
erred in admitting a stipulation that a chemical analyst would testify that a substance sold by the
defendant tested positive for heroin. However, the court determined that the error was harmless
due to the circumstantial evidence that the substance was heroin. The evidence was that the agent
asked the defendant to get him a half ounce of “ ‘stuff’ ” (meaning heroin); the defendant replied
that he would “ ‘try’ ”; the agent paid the defendant $80; and several hours later, the defendant
delivered a half ounce of a “whitish” powder represented to be heroin. Id. at 379-80; see also
People v. Budinger, 230 Ill. App. 3d 279, 289-90 (1992) (evidence that defendant held out a white
powdery substance as cocaine and sold it as such supported conviction). While in both Harrison
and Budinger there was evidence that the officers had field tested the substances, which did not
occur here, there was still sufficient circumstantial evidence to sustain a conviction for the
December 20 delivery.
¶ 37 The State presented evidence that Williams, a former crack addict, called defendant at least
three times 1 and asked to purchase cocaine. Each time, defendant agreed and, upon meeting
Williams, handed him a substance in exchange for a substantial payment. Skelcy’s tests
established that the substance defendant provided on two of these occasions was in fact cocaine.
Williams testified that the December 20, 2016, transaction was essentially the same process, price,
1
We do not consider the evidence related to the December 8, 2016, sale for which
defendant was acquitted.
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2021 IL App (2d) 190742-Uand content as the other two: he got in defendant’s car, put the money on the console, and defendant
gave him what appeared to be cocaine.
¶ 38 Further, Williams, a former addict, testified without objection that the substance he
received on December 20, 2016, was cocaine. “[L]ay or inexpert witnesses may have, by use,
observation, or experience, sufficient knowledge of the appearance, odor, taste, characteristics and
effect of intoxicating liquor or drug to enable them to identify and distinguish them.” Robinson,
14 Ill. 2d at 332; see People v. Olive, 248 Ill. App. 220, 224-25 (1928). Moreover, where admitted
without objection, all evidence, including opinion evidence, has the same effect and may be given
the same weight as though it were legally admissible. Bunch v. Rose, 10 Ill. App. 3d 198, 209-10
(1973); see also Olive, 248 Ill. App. at 224-25. Thus, Williams’ opinion, to which defendant did
not object, can be considered as circumstantial evidence of the identity of the substance defendant
delivered on December 20, 2016.
¶ 39 Taking all the relevant evidence into account, and discounting the Anderson testimonial
evidence, we conclude that the circumstantial evidence was sufficient to prove that the substance
delivered on December 20 by defendant was cocaine beyond a reasonable doubt. Accordingly,
the error in the introduction of the Anderson testimonial hearsay was harmless and, accordingly,
there was no first-prong plain error. See Leach, 2012 IL 111534, ¶ 141 (if an error was harmless,
no plain error). To escape the application of harmless error to its plain-error analysis, defendant
finally argues that his inability to cross-examine Anderson was second-prong plain error. A plain
error under the second prong is “a clear or obvious error [that] 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.” Piatkowski, 225 Ill. 2d at 565. In People v. Patterson, 217 Ill. 2d
407, 424-25 (2005), our supreme court held that confrontation clause violations are subject to a
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2021 IL App (2d) 190742-Uharmless-error analysis. In other words, a confrontation clause violation requires an assessment
of the strength of the evidence. Logically, then, it cannot be second-prong plain error, which
mandates reversal regardless of the closeness of the evidence. The court in Lewis reached this
same conclusion. Lewis, 2019 IL App (1st) 160864, ¶ 52.
¶ 40 III. CONCLUSION
¶ 41 We affirm the judgment of the circuit court of Kane County.
¶ 42 Affirmed.
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