FIFTH DI VISI ON August 30, 2010

1-07-2757

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) 03 CR 646 ) ARMANDO ANTONIO, ) The Honorable ) Dennis A. Dernbach, Defend ant-App ellant. ) Judge Presi ding.

PRESID ING

JUSTICE

TOOMI N deliver ed the opi nion of the

court: He re , w e r ev is it wh et he r a de fe nd an t’ s r ig ht of co nf ro nt at io n w as ab ri dg ed by a pathologist’s testimony narr ating the examinations and observations of nontestify ing experts. Following a jury

trial, defendant, Armando Antonio, was convicted of involuntary manslaughter and conc ealment o f a homic idal dea th and subs equently

sentenc ed to ter

ms of 14 y

ears’ imprisonment and 5 years’ imprisonment, respectively. De fendant now appeals contending: (1) his right to confront witnesses was denied; and (2) he wa s prejudiced by the introduction of other crimes e vidence . For the

reasons that follow, we af

firm. BACKGROUND The charges ag ainst defendant stemmed from the disappearance of Elvia Torres-Bahena. As defendant’s claims of error do not hinge upon the sufficiency

of the evidence, we confine our review of the facts to those necessary to convey an unde

rstanding of the cause and our re solution of the ap peal.1-07-2757

2

Elvia Torres-Bahena was last see n or heard from on June 28, 2002. At that time, she was in the midst of attempting to bring her son to Chicago from Mexico. Beg inning in May of 2002, Elvia lived with defendant. According to Elvia’s mother, Antonia B ahena Martinez, defendant had arr anged to trave l to Mexico on

July 5 , 2002, to a

ccompan y El via’s son , Marcos , back to Chicago. This was planned despite the fact that the boy lacked a visa to enter the country

. Antonia last spoke with her daughter on June 28, 2002. Though the two of them spoke of ten, Antonia did not hear from Elvia again after the conversation. In tur n, Antonia

contact ed her si ster-in- law, Mar

ia Bahe na, who li ved in Hou ston. Mar

ia agree d to come t

o Chicag o to repor

t Elvia miss ing. She

was acc ompanied

by a police of ficer to the apartment Elvia shared with defendant at 2711 South Tripp in Chicag o. The police officer entere d the apa

rtment thr ough a w indow and

allowed M aria insi de the ap artment. Maria observed women’s shoes and clothing, lugg age, and photographs of unknown individuals. Thereafter, Ma

ria file d a missing

person’ s report

and retu rned to Te

xas. The manager of the building testified that he last saw Elvia when he went to collect rent from defendant. Thereafter, he did not see defendant for about a month, when defenda nt indicated he had left “the y oung lady ” and that it was likely she was with another man. On Augu st 12, 2002 , defend ant was in

terview ed by

Detecti ve Dore en Vela squez at hi s workplace. Velasquez described defe ndant as “fidgety

and nervous” during the conversation. He was aske d about the

last time h e saw Elvia. Defe ndant re sponded that they had ende d their relation ship in June 2 002, and he then we nt to Mexico f

or appro ximately

one month i

n order t o vi si t h is mo th er an d h is “r ea l g ir lf ri en d. ” D ef

en da nt th eo ri ze d t ha t b ec au se El vi a p os se ss ed ke ys1-07-2757

3

to his apartment, she might have moved during his trip to Mexico. Defend ant denie d having

arrang ed to acc ompany

Elvia’s s on to Chica

go. He c laimed it was, in fact, a man from Minnesota who was involved in that plan. Furthe rmore, defendant suggested, “[P]erhaps [the man from Minnesota] did something to [Elvia], too.” Several times during the interview defendant indicated he was nervous about the possibility of depor tation. However, nothing defendant said ra ised Detective Velasquez’s suspicions and he was not arrested at that time. Defendant was ultimately arrested on an unrelated traffic stop on December 9, 2002. He was taken into custody by Detective Sam Dickerson of the fugitive appr ehension unit. When Dickerson conducted a custodial search of defendant, he recovered two money order receipts for $700 and $800. They we re made out to defendant and listed “Miss Torres” as the pa yor. Following his arrest by

Detective Dickerson, defendant was inter viewed on December 10, 2002, by Detective Maria Pena. Defendant maintained he last saw Elvia on June 28, 2002, before he left for a vaca

tion in Mexico. Upon his return, he discovered she was gone and he discarded her remaining belongings. Defendant offered the possibility that Elvia fled the country with the $5 ,000 he pu

rported ly g ave her

to purcha se a vehi cle. De fendant denied sp eaking

with Elvia’s f amily or agr eeing t o pick up h er son in M exico. Mor eover, d efenda nt believ ed his refusal to accompany

Elvia’s son might have caused her to be ang ry with him. When asked about the money orde

rs, defendant claimed they were in pay

ment of a debt owed to him by Elvia. He did not

explain the

nature o f the deb t. Despite initially deny

ing that he had access to a computer, a search of defendant’s living1-07-2757

4

quarters uncove

red a de sktop comp

uter. The following

day defenda nt was confronte d with this discovery. The

reafter, he consented to a sear ch of the computer. During a subsequ

ent discu ssion, def

endant to ld Pena he

had not be en truthf

ul previo usly and now wanted to tell her about Elvia. Defendant explained that, on or about June 26, 2002, he and Elvia discussed traveling to Mexico to retrieve her son. The two of them drove to the border between the United States and Mexico. On arriving at the borde r, they paid a “ coyote” – a person who could get people across the bor der illegally

– $700 to get them into Mexico. The coyote rode

in the car with them. Along the way they were

attacked, beaten, and robbed. Defendant and Elvia agree d to return to the United States because they no longer had any

money. The only way

to get back was to swim across a river. As the y swam, the cur

rents became “very rough and high” and defe ndant lost Elvia. According to defendant, once he reached the shore he walked to a nearby

home and asked for dry

clothes. He then hitchhiked to his parents’ home. He spent a couple of day s with his parents, went sightseeing, and then returne d to Chicago. Upon his return to Chicago, defendant threw Elvia’s possession in the g arbage. Following this interview, Pena spoke with Detective L erch concerning the conte nts of defendant’s e-mails. Pena informed defenda nt the e-mails were not consistent with his version of events. Specifically , one message, between Elvia and he r friend, indicated she was happy and excited a bout defe ndant g oing to Me

xico to ge t her son. Elvia wa s looking forwar d to their arrival in Chicago, which she anticipated to be some time in July . Following this confrontation, defendant asked for a cig arette and again told Pena he would tell her the truth. Defendant described an arg ument with Elvia that started because defendant no longe r1-07-2757

5

wished to go to Mexico to bring her son back. The arg ument took place in the bedroom of the apartment at 2711 South Tripp in Chicago. According to def endant, Elvia was insistent that he go to Mexico. Defendant pushed her. Elvia fell and struck he r head on a piece of furniture. Defendant then called her name seve ral times. When Elvia did not respond, he checked for a pulse, but did not find one. He saw blood coming from Elvia’s nose. Defe ndant wiped the blood away a nd then carried her to his van. Pena denied that defe ndant ever told her that what happene d was an a

ccident

. Defend ant drove around f or a while , knowing

he had to d

iscard the body . He par

ked in the area of the 700 block of Kilbourn in Chicago. De fendant spent 20 to 40 minutes considering his options. He decided to discard the Elvia’s corpse in the sewer. U pon realizing the body would not fit in one piece, he resolved to cut it up. Using a knife he f ound in the back of his van, defendant cut the body

in half. He placed the parts in a plastic bag and disposed of them in the sewer. Thereafter, he sold the va n. Following his confession, defendant went with Pena and other detectives to the 700 block of Kilbourn, where he pointed out the sewer he used. Seve ral detectives removed the sewer ca p and located a clear plastic bag containing a torso without a head. The streets and sanitation department was c ontacte d to assist w ith the re moval of the body . Defen dant was returne d to Area 4 Headquarters, wher e he gave a videotaped stateme nt. In the statement, defendant inculpated himself, but nonetheless asserted that what happened to Elvia wa s an accident. Subsequent mitochondrial DNA analy sis determined that Elvia could not be excluded as the sourc e of the D

NA found

in the fe mur and r ib submitte d for ana

lys is. The DN

A in those1-07-2757

6

body parts wa s compar

ed to that of her mo ther and

son. The a

naly sis deter

mined the profile present would occ

ur in 1 out 1 19 unrela

ted Hispa nics. After the State r

ested, de fendant

made sev eral moti ons. The f irst was to

dismiss the

first degree murder counts for f ailure to establish a corpus de licti . Defendant likewise moved for a directed finding. Defendant’s motions were denied. Defendant called two witnesses, his former

ro om ma te an d h is br ot he r, as a p ar t o f t he de fe ns e c as e. Ho we ve r, de fe nd an t d id no t t es ti fy. Following summations, the jury wa s instructed. Among the instructions was one on involuntary manslaug

hter, as requested by

defendant. The jury

returned verdicts of guilty of involuntary murder a

nd concealment of a homicidal death. Defenda nt’s motion for a new trial was denied. In turn, he wa s sentenced to consecutive terms of 14 y ears’ imprisonment for involunta ry manslaug

hter and 5 ye ars’ impr

isonment f

or conce alment of

a homicid

al death . This appeal followed. ANA LYSIS Defendant first contends he was denied his rig ht of confrontation where the testify ing medical examiner did not personally pe rform the postmortem examinations. Defendant contends this evidence was inadmissible because it violated his sixth amendment right to confront witnesses against him. In cr afting his argument, defenda nt relies heavily upon Crawford v. Washington , 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and Melendez-Diaz v. Massachu

setts , ___ U.S. ___, 174 L. Ed. 2d 314, 129 S. Ct. 2527 (2009). The State counters that this claim of error was for

feited a nd notes that defe

ndant con cedes it is being raised f or the fir st time on appeal. Consequently, both sides take the position that review of this issue must be1-07-2757

7

based upon the plain-error doctrine. Supreme Court Rule 615(a), or the plain-error doctrine, de lineates an exception permitting review of issues otherwise subject to procedur al default. People v

. Lewis , 234 Ill. 2d 32, 42, 912 N.E.2d 1220, 1226-27 (2009); 134 Ill. 2d R. 615(a). Our supr eme court described the circumstances under which the doctrine is opera tive in People v. Piatkowski : “[T]he plain-e

rror doctrine all ows a

reviewing court

to consider unpreserved

error when (1)

a clear or obvious

error o ccurre d and the e vidence is so close ly balanced that the error alone threatened to tip the scales of justice agai nst the defenda nt, regar dless of the serousness of the e rror, or (2) a clear or obvious er ror occurred and that error is so serious that it affected the fair nes s of t he defendant’s trial and challenged theintegr ity o f the judic ial proc ess, regar dless of the closeness of the evidence.” People v. Piatkowski , 225 Ill. 2d 551, 565, 8 70 N.E.2d 403, 411 (2007), citi ng People v. Herron , 215 Ill. 2d 167, 186-87, 830 N.E.2d 467, 479 (2005).

Rule 615 specifically pr

ovides that, “Any er

ror, defect, irregular

ity, or varianc e which does not affect substantial rights shall be disrega rded.” 134 Ill. 2d R. 615(a). “E ssentially, the fairness of the trial must be undermined.” People v. Keene , 169 Ill. 2d 1, 17, 660 N.E.2d 901, 910 (1995). The burden of persuasion as to the two prong s falls upon those defendants seeking the application of the doctrine. People v. Naylor , 229 Ill. 2d 584, 593, 893 N.E.2d 653, 659 (2008). Where a defendant cannot ca rry the burde

n, it is incumbent upon us to honor the procedural default. Naylor , 229 Ill. 2d at 593, 893 N.E.2d at 659-60.1-07-2757

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Manifestly, we must asce rtain whether an error actually occurred. Lewis , 234 Ill. 2d at 43, 91 2 N.E. 2d at 1 227, c itin g People v. Walker , 232 Ill. 2d 113, 124, 902 N.E.2d 691, 697 (2009). Therefore, we consider the substance of defendant’s claim of err or. Lewis , 234 Ill. 2d at 43, 912 N.E.2d at 1227. Dr. Nancy

Jones of the Cook County medical examiner’s office te stified to having reviewe d the enti

re case file, inc luding the repor

ts and exam

inations o f the dec omposed torso conducted by Dr. Choi, Dr. Snow’s report of his examination of the skeletal remains, and photogr aphs take n during the stag es of exam

ination. Ch

oi’s rep ort described a p artially decomposed and partially dismembered human torso. X-ray examinations of the torso did not reveal any

foreign metallic objects or projectiles. Moreove r, the internal organs had decomposed. However, bones and parts of bone s were identified. There were no othe r indications of trauma to the body be yond the dismemberment. B ased on his examination, Choi was unable to determine a cause or manne r of death. Following this examination, Choi contacted Snow, a forensic anthropologist, to examine the skeletal remains. Snow’s report concluded the rema ins belonged to a female, between the ages of 30 and 45, who was less than 5 fee t 5 inches in height. The pubic bones exhibited chang es consis tent with having h ad childr en. Snow f

ound no ev

idence o f antemortem injur ies to the bones. He concluded the body was dismembered using a hacksaw, handsa w, or another similar ma

nual devi ce, as op

posed to a

power sa w. Snow opi

ned that t he head was likel y removed in a similar manner, despite the absence of a skull or cerebral vertebrae for examination. Snow was likewise unable to determine a cause of dea th.1-07-2757

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Notably , defend ant’s ar gument r egard ing Dr. Jones’s testimony gives on ly the most cursory a ttention to the underlying issues c oncerning the confrontation clause, pa rticularly insofar as hearsay

is conce rned. De fendant ’s very

focused attention to the abs ence of

an oppor tunity to confront Drs. Choi and Snow makes an analy tical leap of logic, while ignoring the logical underpin nings an d holding s contained in the b ody of prec edent in t

his area . As the Sta

te aptly notes, the analy sis must nec essarily

consider hearsa y, t he natur e of the t estimony – whethe r it is testimonial or nontestimonial – and the nature of the evidence forming the ba sis for the te st im on y. The fundamental guarantee of the sixth amendment provides that “[i]n all criminal prosecu tions, the accuse d shall en

joy the rig ht *** to be

confron ted with th e witness es aga inst him.” U.S. Const., ame

nd. VI . The I llinois con stitution lik ewise ma kes the sa me guar antee. I ll. Const. 1970, art. I, §8. Critical to an understanding of the constitutional principle of confrontation is an understanding of its interrelationship with hearsay . As the Supreme Court explained in California v. Green : “While it may readily

be conceded that

hearsa y r ules and t he Confr ontation Cl ause

are generally

designed to protect similar va

lues, it is q

uite a dif ferent thing to s ugge st that the overlap is complete

and that t he Confr ontation Cl ause is no thing mor e or less thana codification of the rules of hearsay and their exceptions as they e xisted historica lly at co mmon law. Our decisions have never established such a congruence; indeed, we have more than once foun d a viola tion of confrontation values even though t

he state me nts in issue

were a dmitted und

er an ar guably1-07-2757

10

recognized

hearsay exception. [Citation.] The conv e rse is eq ually true: mer

ely because evidenc e is admitt

ed in violation of a long-established hearsay rule does not lead to the automatic conclusi on that confrontation rights have been denied.” California

v. Green , 39 9 U. S. 149 , 15 5-5 6, 2 6 L. Ed. 2d 489, 495-96, 90 S. Ct. 1930, 1933-34 (1970). As the Court noted in Ohio v. Ro berts , a literal reading of the confronta tion clause – i.e. that all st atements by d eclara nts not pre sent at tr

ial would b e exclude d – would c ause it to “abrogate virtually

every he arsay e

xception, a result long rejected as unintended and too extreme.” Ohio v. Ro berts , 448 U.S. 56, 63, 65 L. Ed. 2d 597, 606, 100 S. Ct. 2531, 2537 (1980). Additionally, when re ferring back to Green , the Roberts Court observed: “The historical evidence leaves little doubt, however, that the Clause was intended to e xclude some hearsay.” Roberts , 448 U.S. at 63, 65 L. Ed. 2d at 606, 100 S. Ct. at 2537. Moreover, the Court recog nized an histor ical “pr efere nce for face- to-fac e confr

ontation a t trial” a nd the importance

of cross

examination. Roberts , 448 U.S. at 63, 65 L. Ed. 2d at 606, 100 S. Ct. at 2537. Yet, the Court left open the p ossibility

of fluidit y in the deve lopment of

the rule s across

jurisdict ions: “The Court , howe ver, h as reco gn i zed that c ompeting interest s, if ‘clo sely examined,’ Chambers v. Mississippi , 410 U.S. [28 4,] 295 [(1973)], may warrant dispensin g with c onfronta

tion at tri al. See Mattox v. United States , 156 U.S. [237,] 243 [(1895)] (‘general rules of law of this kind, how ev er bene ficent in their operation and valua ble to the accused, must occasionally give way to considerations of public policy and the

necessities of the case’). Significantly, every jur isdiction has1-07-2757

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a strong interest in effe ctive law enforc ement, a

nd in the de

velopmen t and pre cise formulationof

the rules of evidence applicable in criminal proce edings.” Roberts , 448 U.S. at 64, 65 L. Ed. 2d at 606-07, 100 S. Ct. at 2538. Next, in White

v. Illinoi s , 502 U.S. 346, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992), the Court note d the tra

ditional a pproach to the inte

rplay of hearsay

and conf rontation : “Nonetheless, we have consistently

sought to ‘stee[r] a middle course,’ [citation], that recognizes that ‘hearsay rule s and the Confrontati on Cla

use a re g ener ally desig ned to pro tect

simila r val ues, ’ [cit ation], and ‘stem from the same roots,’ [citation].” White v. Illinoi s , 502 U.S. 346, 352-53, 116 L. Ed. 2d 848, 857, 112 S. Ct. 736, 741 (1992). In Crawford

, the Unite d States Supreme Cour t held tha t insofar as testimonial evid

ence is

concer ned, this c onstitutional safe guard “demand s what the

common la

w requir ed: unava ilability and a prior opportunity f

or cross-examination.” Crawford , 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Importantly , the confrontation clause “commands, not that evidence be reliable, but that reliability be a ssessed in a particular manner: by testing in the crucible of cross-examination.” Crawford , 541 U.S. at 61, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370. While Crawford

distingu ished tes timonial a

nd nontest

imonial he arsay, the dec ision did not attempt to comprehensively de fine what constituted testimonial hearsay . Nevertheless, the Court cautioned that “[w]hatever else the term covers, it applies at a minimum to prior testimony at a preliminary

hearing, before a g

rand jury, or a

t a former trial; and to police interrogations.” Crawford , 541 U.S. a

t 68, 158 L . Ed. 2d at

203, 124 S. C t. at 1374. Accord ing to the Court, these were “the modern practice s with closest kinship to the abuses at which the Confrontation1-07-2757

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Clause was directed.” Crawford , 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. “Conversely, whe

re nontestimonial hearsay is at issue, the Court held that ‘it is wholly consistent with the Framers’ design to affor d the States flexibility in their development of hearsay law *** as would an approach that exempted such statements from Confrontation Clause scrutiny .’ ” People v. Leach , 391 Ill . App. 3d 161 , 169, 908 N. E.2d 1 20, 12 8 (200 9), qu otin g Crawford , 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Significantly , business records and statemen ts in furtherance

of a cons piracy , which th e Court ac

knowledg ed as hist

orically nontestimonial, fell within that exempted class of statements. Crawford , 54 1 U. S. at 5 6, 1 58 L. Ed. 2d at 195-96, 124 S. Ct. at 1367. Agains t this back

ground , we must de

termine, then, whe

ther the reports prepar ed by Drs. Choi and Snow qualify as business rec ords. Our resolution of this question is informed by the legislative guidepost of section 115-5.1 of the Code of Criminal Procedur e of 1963, which provides : “In any civil or cr iminal action the records of the coron er’s medical or laboratory

examiner summarizing and detailing the performance of his or her official duties in performing medical examinations upon deceased persons or autopsies, or both, and kept in the ordinary course of business of the coron er’s office , duly certified by the county

coroner or chief

supervis ory

coroner ’s pathol ogist

or medical examiner, shall be received as competent evidence in any

court of this State, to the extentpermitted

by this Section. These reports, specifically including but not limited to the pathologist’s protocol, autopsy reports and toxicol ogical r eports, shall be1-07-2757

13

public documents and thereby may be admissible as prima facie evidence of the facts, findings, opinions, diagnoses and conditions stated therein. A duly certified c oroner’s protocol or autopsy repor t, or both, complying

with the requirements of this Section may be duly admitted into evidence a s an exception to the hearsay

rule as prima facie proof of the ca use of death of the person to whom it relates. The records refe

rred to in this Sectionshall be limited to the records of the resultsof post-mortem exami na tions of the findings of autopsy and toxicological laboratory e

xaminations.” (Emphasis added.) 725 IL CS 5/115-5.1 (West 2006). The plain language of this section is persua sive and convinces us of the correctness of characterizing the reports of postmortem examinations as business recor ds. Established precedent further ga

lvanizes our resolve in this conclusion. See People v . Moore , 378 Ill. App. 3d 41, 50, 8 00 N.E.2d

229, 237 ( 2007) (a

utopsy report is a busines s recor

d); Fatigato v. Village of Olympia Fields , 281 Ill. App. 3d 347, 358, 666 N.E.2d 732, 740 (1996) (toxicology report considered business record by Supreme Court Rule 236(a) (134 Ill. 2d R. 236(a)) ). In Moore , the medical examiner who performed the autopsy retired prior to trial and was unavailable to testify. A se cond medical examiner testified to the contents of the report and the opinions expressed t

herein. The testi fy

ing medi cal examiner also in dicated his agr eement w ith the conclusions and opinions expressed in the report, that the victim died as a result of blunt force trauma. Moore , 378 Ill. App. 3d at 44, 800 N.E.2d at 232. Our second division conclude d the pres entation

of this tes timony

did not den

y the defen

dant his sixth

amendme

nt right s to confron tation. The court was persu aded tha t the rec ords at iss

ue were public re cords or

business1-07-2757

14

records and did not implicate Crawford by their introduction. Moore , 378 Ill. App. 3d at 50-51, 800 N.E.2d at 237. The Moore court relied, in part, on Fatigato v. Village of Olympia Fields , which not

ed that a toxicolog

y r eport wa s a busine ss recor d by virtue of Supreme C ourt Rule 236(a). Fatigato , 281 Ill. App. 3d at 358, 666 N.E.2d at 740. We recently a

rrived at a similar conclusion in Leach . There, the defendant was char ged with the first degree murder of his wife. T he autopsy in Leach was, like the case sub judice , performed by

Dr. Choi, who retired prior to trial. Leach , 391 Ill. App. 3d at 167, 908 N.E.2d at 125-26. In reliance upon the autopsy report a

nd materials reviewed by Dr. Choi, the testifying medical e xaminer op ined that

the victim

died as a result of strang ulation a nd her de ath was a homicide. Leach , 391 Ill. App. 3d at 167, 908 N.E.2d at 126. I n rejecting defendant’s confron tation cla use clai m, we obse

rved, “A n unbroke

n line of precede

nt instructs that busi

ness records have been uniformly regarded as an exception to the hear say rule.” Leach , 391 Ill. App. 3d at 169, 908 N.E.2 d at 128. We likewise construe d the prov

ision of se ction 115- 5.1 as a codification of the common law exception to hearsay for this category

of business records. Leach , 391 Ill. App. 3d at 170-71, 908 N.E.2d at 128-29. Furthermore, we are unper suaded by def

endant’s claim that the Melendez-Diaz opinion “implicitly overruled” our decisions in Leach and Moore . Accord People v. Cortez , No. 1-07- 3245 ( June 22, 20 10), c itin g Melendez-Diaz , 557 U.S. at ___, 174 L. Ed. 2d at 321-22, 129 S. Ct. at 2532. Importantly , Melendez-Diaz involved a factually

inapposite situation to the one presented in the case sub judice . In that case, the def endant’s trial included the presentation of three “ ‘certificates of ana lysis’ ” from fore

nsic analysts who tested the substanc e found in the1-07-2757

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defendant’s possession. These certificates indica ted the substance tested was cocaine. Melendez-Diaz , 557 U.S. at ___, 174 L. Ed. 2d at 320, 129 S. Ct. at 2530-31. The Court concluded these documents fell within the “ ‘core cla ss of testimonial statements’ ” addressed by the confrontation clause where they were “quite plainly

affidavits.” Melendez-Diaz , 557 U.S. at ___, 1 74 L. Ed. 2d at 3 21, 12 9 S. C t. at 2 532, q uoti ng Crawford , 541 U.S. at 51, 158 L. Ed. 2d at 193, 124 S. C t. at 1354. Accord ing to the Court: “They a re incontrovertibly a

‘ “solemn declaration or affirmation made for the purpose o f establi shing or proving some fact.” ’ [Citat

ion.] The f

act in que stion is that the su

bstance found in the possess ion of [the d efenda nt] and his c odefend

ants was, as the prosec

ution cla imed, coc aine – the

precise testimony

the anal yst s would be expected to provide if called at trial.” Melendez-Diaz , 557 U.S. at ___, 174 L. Ed. 2d at 321, 129 S. Ct. at 2532. Therefore, the prepare

rs of the certificates were, indee d, witnesses against the defendant and thus su

bject to c onfronta

tion, unle ss they

were unavailab le and pr

eviously subjecte d to cross

examination. Melendez-Diaz , 557 U.S. at ___, 174 L. Ed. 2d at 321-22, 129 S. Ct. at 2532. Unlike the situation in Melendez-Diaz , the reports of Drs. Choi and Snow did not prove any fact in question. As noted, neither doctor came to any conclusion relative to an element of the offense charg ed aga

inst defe ndant. Whil e it is arg

uable ce rtain of D r. Snow’s estimations could provide support for certain inference s as to the identity of the dece dent, he offered no opinion as to any particular

fact or element of the offense cha rged. Characterizing Drs. Choi and Snow as witnesses against defendant would extend the rationale of Melendez-Diaz to a degree not1-07-2757

16

previously contemplated. We reached the same conclusion in People v . Pitchfor d , where the defendant made a similar challenge to the testimony of a medical examiner who did not perform the postmortem examination, but, instead, relied upon reports of another physician. People v . Pitchfor d , No. 1- 07-2697 (June 1, 2010). In dispensing with the defe ndant’s argument, our second division stated: “The defendant has failed to make any ratio nal argu ment r egardin g what a dvant age he would have gained by

cross-examining the phy sician who perf or med the autopsies and prepared the reports. The medical e xaminer who did testify was mere ly relating the results of the autopsies as written in the autopsy reports. *** An a utopsy report is significantly diff

erent from a lab report of the ty pe at issue in Melendez-Diaz

. The inapplic ability

of Melendez-Diaz

to the fa cts of the caseis clear . The main

focus of the testimony reg arding the autopsy reports in this case dealt with the manner of death; specifically, e stablishing the fact that the victims weres hot to death. At no time in the trial was the manner of deat h in dispute. The defendant’s argument on this issue, taken to i

ts logic al concl

usion, wou

ld y ield absu rd resul ts. In any event, the de fe nd an t h as ut te rl y f ai led to show any re sulting prejudice from the assistant medical examiner’s testimony reg arding the autopsy report.” Pitchford

, slip op. at 13-14. An identical result obtained in Cortez , where our second division

rejecte d the same argume nt and emphasized th e position that Melendez-Diaz

does n ot ser ve to “ upset ” the h oldi ngs1-07-2757

17

announced in Leach and Moore

. Cortez , slip op. at 10. In Cortez , an autopsy re port was admitted, without production of the author, over objection by the defense. Cortez , slip op. at 11. While acknowledging the import of the holding in Melendez-Diaz , the Cortez court noted the factual dissimilarity betwee n the case at issue there and Melendez-Diaz , maki ng Crawford inapplicable. Cortez , slip op. at 10. Instead, the court reiter ated the principle reflected in prior case law, concluding that “autopsy reports are business records and do not implicate Crawford.” Cortez , slip op. at 10. Based on the conclusion that the autopsy report was a business record and in view of the relevant body of

precedent, we are convince d Crawford is not implicated in the present case. Consequently, we conc lude the introduction of the reports of Drs. Choi and Snow through the testimony of Dr. Jones was not violative of defe ndant’s right to confront witnesses against him. See Moore , 378 Ill. App. 3d at 51, 800 N.E.2d at 237. Notably, the substance of Dr. Jones’s testimony was directed to wha t could best be characterized as a summary of the reports of the other examiners. Moreover, insofar as the substance of Dr. Choi’s re port is concerned, no conclusion was drawn as to the cause and manner of de ath of the victim, as they we re “undetermined.” Likewise, Snow’s report was a generalized review of the skeleta l remains providing estimations of age and statu re. Neit her of the repor

ts went to t

he identi ty o f the vic tim per se . Instead, the informat ion contr ibuting t o the iden tity of the victim and the

circumst ances of her demi se came from other sources, not the least of which was defe ndant’s statement and revelation of the location of her remains. All of this is to say that, in a practical sense, there was little or nothing1-07-2757

18

to confront or disprove in the reports of Drs. Choi and Snow. Testimony like that presented by Dr. Jones possesses no such kinship. Moreover, we are unable to asce rtain any mea

ns or measure by

which Dr. Jones’s testimony was harmful to def endant. Keeping in mind the jury ’s conclusion as against the charg es against him, it is clear the jury accepted his theory

of what happened. Nevertheless, there wa s no error and further examination of plain-error c onsiderations is not warranted. Next, defe

ndant cha llenge s the admis sion of oth er crime s evidenc e offer ed by Maria Chavez, de fendant ’s forme r spouse. The evid

ence complained

of reg arded a

n inciden t wherei n the defendant threatened her life, w hile armed with a gun. The State responds that defe ndant forfeit ed this ar gument b ecause

the rec ord is insufficien

t for this c ourt to consider th e argu ments made on the pretr

ial motions in limine and the a rgumen t does not a

dequate ly c ite to the r

ecord to support hi s content

ions. Be fore en

gagi ng the ma chinatio ns involve d in proce dural de fault analysis, we will first deter mine whether an error occurr ed. See Lewis , 234 Ill. 2d at 43, 912 N.E.2 d at 12 27, ci ting Walker , 232 Ill. 2d at 124-25, 902 N.E.2d at 697. As the State notes in its brief, the matter of the introduction of other crimes evidence was the subject of a motion in limine . The tria l court’s ruling p ermitted

the State to introdu

ce this vein of evidence. Following a ca utionary instruction, the jury heard testimony fr

om defendant’s former s pouse, Ma

ria Guad alupe Cha vez. Acc ording t

o Chavez, she and de fendant divorce d in April of 1999. She described their union as a “bad marria ge.” Then, in June, 1999, defendant visited Chavez’s apartment and threatened her with a g un. Defendant pointed the gun at Chavez and told he

r he was going to kill her . Defen

dant fur ther stat ed that he would hide

Chavez’s c ar in1-07-2757

19

the garage whe

re her family

would neither see the car nor find her. Decisions concerning the admissibility of evidence are left solely to the trial court acting in its discretion. People v . Harris , 231 I ll. 2d 582, 5 88, 901 N. E.2d 367, 3 70 (2008) . As a reviewing court, we will not reverse a n such evidentiary

determinations unless there record “clearly demonstrates” discretion was abused. Harris , 231 Ill. 2d at 588, 901 N.E.2d at 370. Manifes tly, evidenc e of othe r crimes committed

by a defenda nt is not ad

missible if

its relevancy is limited merely to establishing a prope nsity to commit crime. People v. Kliner , 185 Ill. 2d 81, 146, 705 N.E.2d 850, 883 (1998). Neverthe less, admission of such evidence may be permitte d “wher

e relev ant to prove any

materia l question other tha n the def endant’ s propens ity to com mit c rime, inclu ding modus operandi , intent, identity, motive, or absence of mistake.” Kliner , 185 Ill. 2d at 146, 705 N.E.2d at 883. I n considering admission, it is incumbent upon the trial judge to weigh the probative value of the proposed evidence as aga inst the danger of prejudice to the defendant. People v. Illgen , 145 Ill. 2d 353, 365, 583 N.E.2d 515, 519 (1991). We review this claim of error under the abuse of disc retion standard. Kliner , 185 Ill. 2d at 146, 705 N.E.2d at 883. Our review of the

evidenc e prese

nted at tr ial give s crede

nce to the releva nce of th is evidenc e. The sim

ilarity betwee n defend ant’s confession

and the th

reat mad e to his ex-w

ife is

un mi st ak ab le . T ha t t he pr io r t hr ea t i nv ol ve d a gu n d oe s n ot al te r o ur pe rc ep ti on . Im po rt an tl y, the simila rity in the two a

ccounts i s not indic ative of propensi ty e vidence . Ins tead, it c ould comfortably fit within the context of intent, modus operandi , or absence of mistake. See Kliner , 185 Ill. 2d at 146, 705 N.E.2d at 883. Among these, the concept of modus operandistrikes a1-07-2757

20

particularly r

esonant chord. As our second division discussed in People v. Jackson , when evaluating a jury

instruction: “Defendant’s instruction defined modus ope randi as ‘a pattern

of behavior so distinct that separate ac ts or conduc t are reco gniz ed as

the w ork o f the

same pers on.’ We

no te that mod

us operandiis generally

defined in this fashion in Illinois cases.” People v. Jackson , 331 Ill. App. 3d 279, 291-92, 771 N.E.2d 982, 993 (2002). This definition provides a sound basis for the admissibility of this evidence

. Chavez’s testimony, coupled with defenda nt’s admission that he got angry with Elvia and responded by pushing

her, illustrates his manner of handling stressful or upsetting situations. Likewise, this evidence could ca pably demonstrate a

n absence of mistake on his part. Given the jury’s verdict, the use of this evidence to demonstrate intent is less clear. Never theless, given the various alternate uses for this evidence, other than to e stablish propensity, we ca nnot conclude th e t ri al co ur t a bu se d i ts di sc re ti on by a dm it ti ng Ch av ez ’s te st im on y. As we conclude there was no abuse of disc retion, defendant’s claim of error is without merit. We, therefore, need not consider whether the plain-error doctrine would permit defendant to overc ome the pr

ocedura l defaul t of his cla

im. Fo r t he fo re go in g r ea so ns , w e a ff ir m t he ju dg me nt of

th e c ir cu it co ur t o f C oo k C ou nt y. Affirmed. FITZG ERALD SMITH and HOWSE, JJ., concur.1-07-2757

21 REPORTER OF DECISIONS – IL LINOIS A PPELLATE COURT

(Front Sheet to be Attached to Each Case) THE PEOPL

E OF THE

STATE OFIL

LI NOI S, Plaintiff-Appellee,

v. ARMANDO ANTONIO, Defend ant-App ellant.

No. 1-07-2757 Appella te Cour t of I llinois First District, FI

FTH Division August 30, 2 010 (Give mon

th, day and y

ear ) PRESIDING JUSTIC E TOOMI N deliv ered the opinio n of the

court: FI TZ GER

ALD SM ITH and HO WSE, JJ. concur [s] dissent[s]

Lower Court and T rial Judge(s) in form indicated in t he margin: Th e H ono rable Dennis Dernbach, Judge P residing

.

Indi cate if

att orney repre sent s APPELLANTS or APPELLEE S and i nclu de att orney s of

couns el. Indi cate the word NONE if n ot re prese nted. Attorneys for Plaintiff-Appellee-People of the State of Illinois: Anita Alvarez State’s Attorney County of Co ok Room 309- Richard

J. Daley Center , Chicago, I

L 60602 O f counsel: Alan Spellberg , Mary Boland Attorneys for Defen

dant-Appellant-

Armando An

tonio: Abishi C. Cun ningham, Jr. Gwyndolette Bro

wn 69 West Washington, 15 th floor Chicago, I

L 60602 Please U se Fol low ing Form: Co mple te TITLE of Case

Docket No. COURT Opini on Filed

JUSTI CES

APPEAL f

rom the Circuit

Ct. of Coo k Co unt y, Chancery Div.

For APPELLA

NTS, John Doe, of Chicago. For APPELLEES, Smith and S mith of Chica go, Joseph Brow

n, (of Counse l) Also add attorney s for third-party appellants or appellees.