## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Robin son , 2013 IL App (1st) 102476

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. EL L I OT ROB I

NSON, Def

endant- Appellant.

District & N o. First District, Six th Division Docke t No. 1-10-2476

Filed Dec ember 2, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction for first deg ree murder was upheld on appea l, since, inter alia
, the six th amendment was not violated by the admission of the victim’s dy

ing decla rations, expert testimony

about toolmark and firea rms identification was admissible without a Fr ye hear ing, the admission of evidence of defe ndant’s stateme nt that he had sold bullets
to the victim did not violate t h e p ro h ibition ag ainst the admission of other-c rimes evidenc e b u t , rathe r, was rele vant to the extent that it supported defenda

nt’s claim t hat he had no dispute with t h e victim and it showed his consciousness of guilt, and defenda nt’s argument that the trial court’s failure to substantially comply with Supreme Court Rule 431(b) constituted plain err or failed in the absenc e of any showing that the evidenc e wa s closely

balanc ed.

Dec ision Under Review Appea l fro m t h e Circuit Court of Cook County
, No. 06-CR-21382; the Hon. J oseph M. Claps, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Melinda Gra ce Palacio, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg and Peter D. Fische r, Assistant State’s Attorney s, of counsel), for the People.

Panel J USTI CE REYES delivered the judg ment of the c ourt, with opinion.
Presidin g J u s t ice Rochford and J ustice Hall concur red in the judgme nt and opinion.

OP INION

¶ 1 Following a jury trial in the circ uit court of Cook County
, defe ndant Elliot Robinson wa s found guilty of first degree murder (720 I L CS 5/9-1(a) (1) (West 2004)) and sentenc ed to 48
y ear s in prison. On appea l, defe ndant contends: (1) the admission of the victim’s statement made shortly befor e his d ea t h v iolated defe ndant’s rig ht to confr ont the witnesses ag ainst him; (2) the trial judge should have excluded the toolmark an d fi re arms identification evidenc e as lacking a scientific basi s o r conducted a hear ing on the admissibili ty of the evidenc e; (3) the trial court should have suppressed t es t imony reg arding defe ndant’s
statement made in the lockup; (4) the trial court err ed in admitting defe ndant’s statement that he sold bullets to the victim; and (5) the jury venire was improperly questioned during voir dire in violation of I llinois Supreme Court Rule 431(b) (ef f. May 1, 2007). For the following

rea sons, we re

ject def endant’ s arguments and af firm the judg ment of the c ircuit court.

¶ 2 BA CKGROUND ¶ 3 The rec ord on appea l discloses the following fac ts. Def endant was indicted on six counts

o f fi rs t deg ree murder and four counts of ag g ravated unlawful use of a wea pon for t h e October 12, 2005, shooting death of Centrale Colli ns (Collins). Prior to trial, defe ndant filed five motions in limine rele vant to the issues raise d in this appeal.

¶ 4 Pretrial Motions ¶ 5 Def

endant filed a motion to exclude statements Colli ns provided to p ar am ed ic L eroy P h i l l i p s (Philli ps) shortly befor e his death. Def endant argued these statements were inadmissible testimonial hear say under Cr a wf o r d v

. W a s h in g ton , 541 U.S. 36, 68 (2004). The trial court denied the motion, ruling the statements wer e admissible as dying decla rations and not testimoni al. ¶ 6 Def

endant also filed a mo t i o n s ee k i n g a h ea ri n g on the admissibili ty of the State’s

-2-proposed us e o f t oolmark and firea rms identification evidenc e pursuant to Frye v. United States
, 293 F. 1013, 1014 (D.C. Cir. 1923). The motio n ar gu ed toolmark and firea rms identification analy sis has not been scientifica lly validated and lacks objective standards or

a known err or rate

. The motion also asser ted there is no g ener al consensus that toolmark and firea rms examiners can make an identification based on a few matching char acte ristics. The trial court, indi cating there is no scientific process invol ved in firearms compa rison which would be subjec t to Frye , denied the motion for a hear ing. ¶ 7 Def

endant subsequently moved to p r e c lu d e th e St a te ’ s f ire a r ms e xa mi ners from testifying that their conc l u sions wer e within “a rea sonable deg ree of scientific cer tainty .” The trial
court ruled the State’s firea rms examine rs wo uld be permitted to testify reg arding their expertise in their respe ctive fields, but would be barr ed from opini n g an d t es tifying their conclusions wer e within “a r easona ble degree of scientific cer tainty .” ¶ 8 In addition, defe ndant filed a motion in limine to bar the State from introducing evidenc e t h at d efe ndant was involved in the J une 2, 2005, arme d robber y of Arne Kent (Ke n t ) an d Gene va Be nton (B enton) (the Kent robber y ). The State soug ht to admit evidenc e of the Kent robber y beca use t he firear

ms evidenc e indi cate d car tridg e cases recove red by polic e at t he

scene of t he C ollins shooting and car tridg es fired during the Kent r obbery wer e fire d from the same wea

pon. As one of the victi m s i n the Kent robber y identified defe ndant as the
perpe trator, the State argued t h e evidenc e of the Kent robber y was admissi ble as evidenc e of the shooter’s identity in this case

. The trial court denied defe ndant’s motion to exclude the evidenc e fr om the Kent robbe ry

. ¶ 9 L astly
, defe ndant moved to exclude an y s t at em ents defe ndant made which wer e not

rec orded in acc ordanc e with state law. See 725 I L CS 5/103-2.1 (West 2008). The trial court hear d this motion prior to the trial testimony of Chicag o police detec tive Danny Stover. At the suppression hear ing, Detec tive Stover testified defe ndant, while being take n to th e lo c k up

are a to be pr ocesse d, admitted he wa s at the s cene of t he shoot ing, but asserted he was not the shooter. The police previously rec orded defe ndant d e ny in g a ny k n o w le dg e or information
reg arding t h e s h o o t i ng

. The trial court denied the motion to exclude the testimony as to defe ndant’s statements, finding the statements in the lockup are a wer e spontaneous and not the produc t of police interr og ation.

¶ 10 J ury Selection ¶ 11 During voir dire
, the trial court explained the following leg al principles to the jury venire : defe ndant was presumed innocent; the Sta t e b o re the burden of proving defe ndant guilty beyond a rea sonable doubt; and defe ndant had the rig ht to not prese nt evi d en ce an d not testify

. After discussing eac h principle, the trial court reque sted the potential jurors to raise their hands if they had a problem with the principle. No jurors raised their hands afte r these questions were posed. De fense counsel lodg ed no objec tion to thi s proce dure.

¶ 12 Trial ¶ 13 De fe n dant’s trial commence d on Dec ember 1, 2009. Neil S ennett, a para medic for the City of Chicag o fire depar tment, testified that on October 12, 2005, he was dispatched to the

-3-corne r of 71st Street and Champlain Avenue at 3:57 p.m. Sennett observe d Colli ns lying on

his ba ck in the rea

r g arde n of 7131 South Champlain Avenue and the first responde rs from fire eng ine 6 1 ( th e e n g in e ) w e r e administering emer g ency car e with ox yg en, trauma dressing s and saline IVs

. S en n et t s poke to Colli ns at the scene

. Acc ording to Sennett, Colli ns was conscious and aler

t. Sennett reque sted Colli ns’ name, date of birth and addre ss, and Colli ns responde d acc ording ly

. Sennett further testified that afte r C o l l i n s was place d in the ambulance
, he was g iven ox yg en, another saline I V, and wound car e b ecause he was bleeding profuse ly

. Acc ording to Sennett, Colli ns was not administered painkillers beca use the onl y painkiller on board was m orphine, wh i ch woul d have dropped his blood pressure further

. ¶ 14 Inside the ambulance
, Colli ns inquired of Sennett whether he was g oing to die . Sennett testified he held Colli ns’ hand and said, “[Y]es, y oung man, I ’m sorry y ou are g oing to die.” Immediately there afte r, Sennett hear d his partne r Phill ips inquire whether Colli ns knew who shot him. S ennett hea

rd Collins respond it wa s “Elliot.” Phill ips inquire d wher e Elliot wa s from, to which Colli ns responde d, “71st and Champlain.” When Phill ips inquired of Colli ns why he was shot, Sennett hear d him reply Elliot acc used Colli ns of stealing Elliot’s wea pon. ¶ 15 Sennett then drove the ambulance to Stroge r Hospital at 4:13 p.m. Acc ording to Senne tt, Colli ns was conscious when he opened the rea r of the ambulance
, but Colli ns died befor e he and Phillips transporte d Colli ns throug h the first set of hospital doors. ¶ 16 P h i l l i p s t est ified he was dispatched to 7131 South Champlain on October 12, 2005

. Phill ips confirme d the engine paramedic at the s cene had adminis t er ed C ollins an I V wit h
two bags of fluid, ox yg en and bandag es befor e Phill ips arrived, but no medication. After speaking with the eng ine para medic, Phill ips spoke to Colli ns and inquired about his name, date of birth and other g eneral questions. Acc ording to Phill ips, Colli ns was awake and conscious whe n the questions wer e beingposed to him. ¶ 17 After Colli ns was place d in the ambulance
, Colli ns inquired of Sennett whether he was g oing to die; Sennett informed him he was. Phill ips testified he then inquired of Colli ns who shot him and Colli ns responde d “Elliot.” Phili ps then inquired, “Elli ot who? ” and Colli ns replied, “Elliot from 71st and Champlain.” Phill ips also testified he asked Colli ns “Why did he shoot you? ” and Collins said, “Ove r a stolen gun.” ¶ 18 Phill ips and Sennett then transporte d Colli ns to Stroge r Hospital. Ph il lip s further testified he completed a run sheet reg arding the incident and noted Colli ns provided a statement while beingprepa

red f or transpor

t. ¶ 19 Dr. Kenda ll Crowns, a Cook County deputy medical examiner, testified he perf ormed the autopsy of Colli ns on October 13, 20 0 5

. Dr

. C rowns observe d five throug h-and- throug h
gunshot wounds. Dr. Crowns also observe d sever al abra sions on the body and a bruise to the rig ht eye, which Crowns opined could have bee n cause d from a f ight or a fa ll. Dr. Crowns opined the cause of death wa s m ultiple gunshot wounds and the manner of death was homicide. ¶ 20 Detec tive Danny Stover testified he was assig ned to investigate the Colli ns shooting a nd
proce eded to 7131 South Champlain Avenue at 5:15 p.m. Detec tive Stover was informed by other detec tives Colli ns had died, but had provided statements to the para medics. Detec tive

-4-Stover’s partne r, Timothy Murphy
, sear ched a databa se of public rec ords for an “Elliot” near

71st Street and Champlain Avenue
, which y ielded one result, fo r defendant at 7141 South Champlain Avenue

. Detec tive Stover testified he proce eded to that ad d re s s with other office rs and spoke to defe ndant’s mother. Detec tive Stover left the residenc e, but rema ined outside for a short wh i l e, at which point a vehicle car rying defe ndant arr ived. Detec tive Stover identified defe ndant in court. Stover also testified he notified defe ndant his name was mentioned in an investigation. After defe ndant ag ree d to talk, Detec tive St o v e r a n d d e f e ndant
proce eded to Are a 2 police headquar ters. Accor d i n g to Detec tive Stover, crime laboratory
personne l perf

ormed a gunshot residue test on defe ndant before Detective St o ver escorte d him to Area 2 f

or an inter

view. 1 ¶ 21 Detec tive Stover further testified he and Detec tive Tom Shebish informed defe ndant of his constitutional rig hts. The polic e t hen spoke to defe ndant reg arding the shooting, even “fishing ” with lies to see how h e wo u l d respond, for i nstance , to the assertion Colli ns had been shot 20 times. De t ective Stover added the conver sation with defe ndant was rec orded

on a videotape, a reda cted version of which was shown to the jury
, with instructions the jury was not to speculate re g ardingthe contents of the reda cted por tions. ¶ 22 On the videotape, defe ndant acknow ledg ed he knew Colli ns, but indicated the two wer e not close friends. Def

endant stated he met with Colli ns on the Monday prior to the shooting,
at which time Colli ns informed him “some guy s wer e f***ing with him.” Acc ordi n g t o defe ndant, Colli ns said he neede d bullets and defe ndant replied he would attempt to obtain

s o m e bullets from his brother. Def endant further stated he obtained the bullets at Colli n s ’
reque st and sold them to Colli ns for $30. In addition, defe ndant stated that on the day of the shooting he attended a class at Chicag o State University

. Def endant lear

ned of the shooting in a telephone call he rec eived befor e leaving school at 3:45 p.m. Def endant proce eded from class to meet Tazi e W illiams (Will iam s ). De fe n d ant proceede d by bus and arrived at 4:40
p.m. ¶ 23 Continui ng with his testimony
, Detec tive Stover testified he confr onted defe ndant with the statement Col lins provided to the paramedics before he died a nd defe ndant denied a

ny involvemen t

. After defe ndant’s statements wer e rec orded on the videotape, he was transfe rre d to the 5t h District lockup t o be ph o t o g raphe d and finge rprinted. W hile waiting for lockup personne l to open the door, defe ndant informed Detec tive Stover and a Detec tive Shebish he wanted to talk. Acc ording to Detec tive Stover, defe ndant stated “this was bogus” and he w as at the sc ene but did not shoot Colli ns. ¶ 24 In Fe bruar

y 2 0 0 6
, De t ective Stover lear ned the firea

rms evidenc e in the Kent robbe ry matched the firea

rms evidenc e in this case

. Detec tive Stover met with Kent and Be nton. On August 30, 2006, defenda nt was ar rested f or the murde r of Collins. ¶ 25 Thomas Mander (M an d er ), a fore nsic investigator for the Chicag o police depa rtment, testified that on October 12, 2005, he proc essed the c rime sce ne at 7131 South Champlain Avenue
, which was a boarde d-up two-flat building. At the scene , Mander rec ov er ed fi v e

T he r e c o r d i n d ic at es the re sul ts of the gunshot re si due te st ing wer e negati ve. For ens ic 1 sci ent is t El le n Con nel ly was u nab le to con cl ude whet herdef end ant fi re d a weap on.

-5-car tridg e case s, identifying them all to be .40 caliber
, but from three differ ent manufa cture rs. 2 ¶ 26 Tiffa

ny Kimble, a forensic scientist employ ed by the I llinois State Police, testified s he examined five discharg ed cartridg e case s from the Colli ns shooting and deter mined there

wer e no suitable late nt fing er impre ssions on any of them. ¶ 27 Cary

n Tucke r (Tucke r), a fore nsic scientist in the firea rm and toolmark s ec t i o n o f t h e I llinois State Police For ensic S ci ence Center, testified she held a bache lor’s deg ree in biology
, with a minor in c hemistry from Quincy University
, as well as a master’ s deg ree in foren s i c scienc e from the University of I llinois at Chicag o. Tucke r completed a two-y ear training prog ram sponsored by the I llinois State Police, which included practical examinations of firea

rms and ammunition components. She also attended course s from the fede ral Bur eau of Alcoh o l
, Tobac co and Fire arms (ATF ) and firea rms manufa cture rs reg arding the operation and internal working s of firea rms. Tucke r also was trained to use the integ rate d ballistic identificati o n s y stem (I BI S), a computerized databa se which captur es imag es of fired car

tridg e case s and bullets to compar e evidenc e collecte d from various crime

scene s. Tucke r testified she has been qualified to testif y as an ex p ert in firea rms identification on 27 occa sion s

. T u c k e r had completed two proficie ncy tests in her field during the prior year

. ¶ 28 Tucke r explained firea rms identification is a subdiscipline of fore nsic scienc e conc erne d with determiningwhether a fire d car

tridg e ca se or bullet was fired by a par ticular we apon. Acc ording to Tucke r, the basis of firea rms identification is in the repr oduction and simil arity of what examiners ref

er t o as class char acte ristics and individual char acte ristics. Class char acte ristics are features deter mined prior to manufa cture , such as caliber
, the brea ch fac e pattern , the firing pin impression shape, the number of lands and g rooves and direc tion of

3 4 twist. Indi v i dual char acte ristics are imperfe ctions and irregularities cause d during manufa cture or resulting from use, abuse, coer cion or rust. Tucke r testified firea rms examiners use a compar ison microscope
, which is essentially two microscope s joined by an optical bridg e, to compar e the class and individual char acte ristics of two piece s of evidenc e. ¶ 29 On cross-ex am i n at i o n o f h er q ualifications, Tucke r testified her compar isons are a subjective determination, b u t they are based on objective scientific principles and verified by a second examiner. Tucke r also tes t i fi ed s he applied the definitions and guidelines promulg ated by the Association of Fire arm and Tool Mark Ex aminers (AF TE). Tucke r ag ree d the AFT E guidelines are not mandatory
, but added she must follow them t o rea ch conclusions t o a level of certainty wi th which she is comforta ble. Tucker acknowledg ed it would be impossibl e for her to state wi t h absolute cer tainty that two firea

rms could not

Ma nde r al s o r e c overed a bla ck, hood ed swea ts hir t and blo od samples fr om the pool s of 2 blo od on the ground . A f

ore nsi c s ci ent is t e m

plo yed by the I ll ino is Sta te Pol ic e fr om 2005 to 2008
te st if ie d de fe nda nt’ s DNA was exc lud ed f rom a m ixt ure ta ken fr om a p ort ion of

th e s weat shi rt

.

T ucker te st if

ie d tha t when a bul le t is fi re d, the car tr idge cas e wil l mov e r ear war d i nto an 3

ar ea known as th e br eac h f ace

.

“La nds ” a re th e r idges bet ween grooves. 4

-6-produce identical markings on a fired cartridg e case. Tucker f urther te stified the i ncre ased automation in firea

rms manufa cture since 1929 cre ates potential car ryover in subclass char acte ristics, e.g. , when something on a manufa cturing tool car ries over from one wea

pon to the next, but the wea

pons would not have simil ar individual char acte ristics. M o reover, Tuck er t es t i fied the AFT E theory of identification, which is followed by most firea rms examiners in the country , was the subjec t of a va lidation study

. ¶ 30 After the t rial court fo u n d Tucke r qualified to testify as an expert, Tucke r t estified she

rec eived the fired car

tridg e case s from this s hooting in Dec ember 2005. Tucke r’s microscopic examination of the car tridg e case s led her to conclude they wer e all discharg ed from the same wea

pon, a conclusion verifie d by a second examiner in her laboratory

. Tucke r then place d one of the car tridg e case s into the I BI S, which g ener ated possible links to other incidents. Tucke r called for the delivery of ev i d en ce from two other incidents for
compar ison, but conclude d the car tridg e case s in this case could not be identified or excluded as havingbeen f

ired fr om the firea

rms in the other incide nts. ¶ 31 Peter Br ennan (B renna n), a g roup supervisor in the firea rm and toolmark section of the I llinois State Police For ensic Science Center, testified he has a bache lor’s deg ree from North Central College and completed the two-y ear training prog ram sponsored by the I llinois State Police. Br ennan also attended various workshops held by the FB I
, ATF
, and firea rms manufa cture rs. Br ennan had been qualified to te stify as an expert in f

irea rms and toolmark identification on 26 separ ate occa sions in state court and o n ce in fede ral court. Br ennan par ti c ip a te s in a nn u a l p r o f ic ie n c y te sts and has conducte d thousands of firea rms compar isons. ¶ 32 After

the trial cour

t found Br ennan qua lified as an expert witness, Br ennan te stified he

was assig ned to examine evidenc e related to the Kent robber y

. Br ennan took custody of the

car tridg e case s from the Kent robber y on J anuar

y 24, 2006. Br ennan took the car tridg e case wh i ch seeme d most repr esentative of the Kent robber y and submitt ed it to an au t o m at ed databa se known as I VAS, which returne d a list of potential candidates for compar ison. After 5 viewing the imag es from these candidates, Br ennan called for the car tridg e case s rec overe d from t h e Colli ns shooting. Br ennan perf ormed a compar ison and conclude d the car tridg e

case s in the Kent robbe ry wer e fired by the same wea pon as the c artridg e ca ses fire d in the Colli ns shooting. Acc ording to Br ennan, his conclusion was verifie d by a second examiner. On cross-e x amination
, Br ennan testified that to his knowledg e, there has never been a differ ence of opinion betwee n two examiners in his office which war rante d outside revie w, althoug h there was a

proce dure in the e vent of such disa gree ment. ¶ 33 Kent testified that on the evening of J une 1, 2005, or the ear ly morning of J une 2, 2005, he and Be nton wer e robbed at gunpoint in the alley behind Be nton’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 g et out. Kent further testified he was standing at the left front fende r of his automobile when the man i nstructed him to hand over all of hi s money and t o t ak e off his clothes. Acc ording to Kent, the man wore a ski mask covering only h i s n o s e, ch eeks and

m o u t h s o Kent could only observe the top portion of his fac e, his head and hair. Kent

Bre nna n di d no t e xpl ai n t his ac ron ym inhi s t est imony

. 5

-7-testified, howeve r, the man was two fee t awa y from him when he pulled down his mask and said “I ’m that N*** Raamon, I don’t g ive a f ***. Iwant eve ry

thing y ou g ot be cause if y ou try to run I ’m g oing to kill y ou’re a***.” ¶ 34 Ke n t ad ditionally testified the man instructed him to g o into the g ara g e and lay on the floor, wher e Ba

rton was located. After Kent went into the g ara g e, the man instructed him to g o to the fenc e on the other side of the alley and stated if Kent ran, he was g oing to kill him. Kent testified he then ra

n toward Michig an Ave nue and he ard g unshots. ¶ 35 Kent rep o rt ed t h e cr i m e t o t h e p o l i ce. Acc ording to Kent, on Fe bruar y 10, 2006, Detec tive Stover and another detec ti v e ca m e to his residenc e to prese nt him with some photogr aphs to examine. At the time, Kent provided a tentative identification of defe ndant. On August 21, 2006, Kent went to the Are a 2 police headqua rters and viewed a lineup wher e he identified defe ndant as the offe n d er who robbed him at gunpoint. Kent also identified defe ndant in court. ¶ 36 Be nton testified fo r t h e d ef en s e re gar d i n g t h e Kent robber y

. Contrary to Kent’s testimony
, Be nton testified she never observe d the man remove his mask. Be nton was unable to identify

the per petrator of the Ke nt robbery and did not rec og nize defenda nt in court. ¶ 37 J oan Ag new (Agnew)
, an attorney at the firm of J ames M. Scanlon and Associates–who

was the g ener al counsel for the Chicag o Boa rd of Election Commi ssioners–testified that

cer tified voting reg istration rec ords are re qu i re d b y law to be kept in the normal course of business. Ag new is able to deter mine voter reg istrations for a static year and did so for 2004 and 2006. Acc ording to Ag new, the corne r of 71st Street and Champlain Avenue touches three differ ent prec incts, s o she revie wed reg istration rec ords for the entire war d. Ag new testifi ed that other residents of the war d reg istered to vote have “Elliott” in part of their

name: (1) Ver

n L ee Elliot at 7221 South L awr ence Avenue
, born in 1937; (2) Elliot J ohnson
at 7240 South Ch am p l ai n Av en u e, born in 1912; and (3) Elliot D. Cameron, Sr., at 7046 South Eberhar dt Avenue, bor n in 1972. ¶ 38 Wil liams testified she m et d ef en d an t t h rough her g odsister and knows him as “L .” Wil liams testified she lived at 71st Street and Damen Avenue and saw defe ndant on October 12, 2005. Acc ording to Wil liams, defe ndant telephoned befor e he came over. Def endant

arr ived at ap p ro x i m ately 4 or 4:20 p.m. Wil liams testified she and defe ndant watche d television. Wil liams also g ave defe ndant a Ba nd-Aid for a cut on hi s h an d b eca use she thought it “looked nasty” sinc e i t was still open but not bleeding

. Approxim ately 21⁄2 or 3 hours later , defe ndant re ceive d a telephone call fr om his mot her a nd then he de parte d. ¶ 39 Patrick Steppe (Steppe) also testified fo r t h e d ef en s e. S t ep p e was visiti ng his old neig hborhood and walking down 72nd Street toward Champlain Av en u e when he hear d
gunshots and obser

ved three i ndividuals he did not rec ognize running out of t he gangway

. Steppe testified he proce eded down the g ang way and into a backyard wher e he found Colli ns

on the ground, shot and beaten. S teppe telephoned 911 and later spoke t o the detectives at the sce ne, but was ne ver c ontacted by the police ther eaf

ter. ¶ 40 Dar

rin Crowder
, a Chicag o police detec ti v e, t estified he lived at 7108 South C haplain Avenue

. Detec tive Crowder is active in his community and fre quently had n e ig h b o r h o o d k ids

over to play with his sons. Detec tive Crowder testified he had known defe ndant for over 10

-8-y ea rs an d ca l led him “L .” On October 12, 2005, Crowder was in his backyard and heard

multipl e gunshots coming east from his residenc e, then observ ed four teenag ers run down the alley . Detec tive Crowder rec og nized one of the tee nag ers to be Evan Odoms (O doms). L at er that day
, Detec tive Crowder escor ted Odoms to the Are a 2 detec tive divisi o n an d Odoms provided a statement, but was ne ver c ontacted a g ain. ¶ 41 Odoms testified he lived at 7128 South Champlain Avenue

. Odoms has been friends with defe ndant since he was seven y ear s old and knows him as “L .” Odoms also knew Detec tive Crowder
, but not Steppe. Odoms further testified he has been friends with Colli ns for about
a year and a ha lf and introduce d him to defenda nt. ¶ 42 Odoms testified he and three friends were sitti ng on his porch at 3:45 p.m. on October 12, 2005, when he observe d Colli ns walking acr oss the street with five o r s i x m en , but Colli ns did not acknow ledg e Odoms. Odoms also testified he went ac ross the stree t to talk
to Colli ns but he turned and walked down a g angway with the m en b eh i nd him. Odoms further testified he only rec og nized one other person, “B ig Mike,” whom he met throug h Colli ns but did not know personally

. ¶ 43 Acc ording to Odoms, he followed Colli ns and the others down the g ang way toward the backyard, but stopped befor e rea ching the backy ard, beca use he observ ed Colli ns being phy sically attacke d and Big Mike holding a handgun. Odoms t est ified he turned and ran. After hear ing gunshots, Odoms ran throug h the g ang way by his house, into the alley wher e he noticed D etec tive Crowder , and then c ontinued down a f ew house s to a frie nd’s house. ¶ 44 Hours later, Odoms returne d to his block and conver sed with Detec tive Crowder

. Odoms and Detec tive Crowder then went to the police station on 111th Street and Elli s Avenue, wher e Odoms spoke wit h De t ec t i v es Stover and Murphy

. Odoms testified he provided a statement reg arding what he observe d and what happene d, while the detec tives took note s. Acc ordingto Odoms, he was able to obser ve most of the yard a

nd all the men for

a couple seconds but the detec tives and Gillespie wanted him to say he could only see a portion of the
y ard. O doms testified he did not see de fenda nt in the backyard. ¶ 45 Approxim ately a y ear later, Odoms met with the s ame de tectives a nd Assistant St ate’ s Attorney (ASA) Alexandria Gillespie (Gil lespie) to provide another statement. Odoms testified ASA Gillespie transcr ibed Odoms’ statement, prese nted it to him for his revie w, and allowed him to make chang es befor e he signe d it. Odoms did not rec all Gillespie taking a photogr aph of him and him signing it, but he identified himself in a picture and his signature upon the photo. Odoms additionally testified he was rea lly scar ed of the detec tives beca use they wer e intimidating. ¶ 46 Acc ordi n g t o Od o m s , h e i n formed detec tives about Big Mike at both meeting s, but Od o m s ac k n o wledg ed the statement m emorialized by Gillespie did not ref er to Big Mike. Odoms was unable to identify Big Mike in the arr ay of photogr aphs the detec tives provided. Odoms testified that afte r the sec ond meetingwith the detec tives, he wa s never contac ted. ¶ 47 Detec tive Stover testified in rebuttal that he interviewe d Odoms. Acc ording to Detec tive Stover, Odoms never

wrote a ny thing down and handed i t to him, nor di d Detec tive Stover
pressure Odoms to say any thing. Detec tive Stover also testified Odoms informed him during the initial interview that h e had suspected Colli ns burg larized his house and was g oing to

-9-confr ont him with this information. Detec tive Stover further testified Odoms informed him

he observe d a “B ig Mike” or “F at M i ke” holding a black handgun. Detec tive Stover conducte d a sear ch for all “Mikes” in the are a on the Chicag o police depar tment databa se and submitt ed the photos ba sed on Odoms’ infor mation, but Odoms did notidentify any photo

as that of the shooter. After Detec tive Stover confr onted Odoms with defe ndant’s statement of beingat the sce ne, Odoms “put his head down and said, well, Idon’t know, I didn’t see him there.” ¶ 48 ASA Gillespie testified she interviewe d Odoms on August 28, 2006, and memoria liz ed his statement reg arding the Colli ns shooting. Be fore ASA Gillespie took his statement, she was alone with Odoms and inqui red whether he had any complaints about t he way he was
treated by the police. Acc ording to ASA Gillespie, Odoms replied he had been treated well. After she memorialized his statement, ASA Gillespie allowed Odoms to revie w and corr ect the statement, had him initial eac h of the four pag es and sign the statement. ASA Gillespie testified she then took a photogr aph of Odoms, marke d the date and time there on and had it signe d by herse lf, a detec tive and Odoms. ASA Gillespie further testified Odoms never said he obser ved a ma n named B ig Mike with a handgun or fire a we apon. ¶ 49 Following closing arguments and the jury instru ct i o n s, the jury deliberated and found defe ndant guilty of first deg ree murder. The jury also found the State proved defe ndant
persona lly discharg ed a firea rm that proxi mately cause d Colli ns’ death. On J anuar y 4, 2010, defe ndant filed a posttrial motion for a new trial. On J uly 13, 2010, following a hear ing, the trial court denied defe ndant’s posttrial motion and proce eded to a sentenc ing hear ing. After hear ing evidenc e in ag g ravation and mitigation of the offe nse, the trial j u d ge sentenc ed defe ndant to 48 y ear s in the I llinois Depa rtment of Correc tions. On August 3, 2010, defe ndant fil ed a motion to rec onsid er h i s s en t ence, which the t rial j udg e denied the s ame day . Def endant a lso filed a timely notice of a

ppeal on August 3, 2010.

¶ 50 DI SCUS SI ON ¶ 51 On appea l, de fenda nt a rgues: (1) the admission of the victim’s statement made prior to his death violated defe ndant’s rig ht to confr ont the witnesses ag ainst him; (2) the trial judge should have excluded the toolmark and firea rms identification evidenc e as lacking a scientific ba sis; (3) the trial court should ha ve suppre ssed testimony

reg arding

defe ndant’s
statement made in the lockup; (4) the trial court err ed in admitting defe ndant’s statement that he sold bullets to the victim; and (5) the jury venire was improperly questioned during voir dire in violatio n o f I llinois Supreme Court Rule 431(b) (ef f. May 1, 2007). We addre ss defe ndant’s ar guments in turn.

¶ 52 The Admission of the Victim’s Statements ¶ 53 Def

endant first argues the trial court’s decision to allow para medics Sennett and Phill ips
to testify reg arding Colli ns’ statements that “Elliot” shot him and Elliot was from “71st and Champlain” and shot h i m o v er a stolen gun violated defe ndant’s constitutional rig ht to confr ont the witnesses ag ainst him. See Crawf ord
, 541 U.S. at 68. Our supreme court has direc ted that, when revie wing the admissibili ty of out-of-c ourt statements into evidenc e, we

-10-must first deter mine whether those statements “ ‘pass[ ] muster as an evidentiar y matter.’ ” People v. Melc hor
, 226 I ll. 2d 24, 34 (2007) (quoting In re E.H.
, 224 I ll. 2d 172, 179 (2006))

. Only wher e the statements are admissible as an e videntiary matter may this court consider “ ‘constitutional objections–including Crawf ord-base d confr ontation clause claim s

. ’ ” Melc hor
, 226 I ll. 2d at 34 (quoting In re E

. H.
, 2 2 4 I ll. 2d at 179-80). This approa ch is consistent with the gene ral rule of avoidingconstitutional questions where the c ase c an be decide d on nonconstitutional g rounds. Melc h o r , 2 2 6 I ll. 2d at 34. Acc ording ly
, we first consider whether Sennett’s testimony reg arding Colli ns’ statement was admissible as an evidentiar y matter. ¶ 54 In t h i s ca s e, the trial court admitted the testimony as to Colli ns’ statements as dying decla rations. “A dying decla

ration qualifies as a hear say exception beca use it is considere d trustworthy wher e the likelihood of fabr ication is minimal due to the decla rant’s belief that death is imminent.” People v. Graham
, 392 I ll. App. 3d 1001, 1006 (2009). A statement may be admitted as a dying decla ration when it is shown beyond a rea sonable doubt, based upon

an examination of the totality o f the fac ts and circ umstances surrounding the decla ration, that: “( 1 ) the decla

ration perta ins to the cause or circ umstance of the homicide; (2) the decla rant must believe that death is imminent; and (3) the decla rant must p o ssess mental fac ulties sufficie nt to g ive an acc urate statement about the circ umstances of the homicide.” Peopl e v. Georgakapoulos
, 303 I ll. App. 3d 1001, 1009 (1999). A trial court’s decision to admit a statement pursuant to the dying decla ration exception to the hear say rule is aff orded

some defe renc e and a revie wing court will not overturn that decision unless it is ag ainst the manifest weig ht of the evidenc e. People v. Hatchett
, 397 I ll. App. 3d 495, 502 (2009). A trial court’s finding is ag ainst the m anife st weig ht of t he evidence if the oppo s i t e conclusion is clea rly evident. People v . Stiff

, 391 I ll. App. 3d 494, 499 (2009). ¶ 55 In this ca s e, af t er S en n et t i n formed Colli ns he was g oing to die, Colli ns identified “Elliot” from “71st and Champlain” as the shooter and stated Elliot acc used him of stealing

a gun. Sennett and Phill ips testified Colli ns was aler t, able to respond to questions, and was not administered painkillers. Def endant does not dispute the statements we re dying decla rations. Given this rec ord, we conclude the tr i al court’s ruling the statements wer e admissible as dying decla rations was not ag ainst the manifest weig ht of the evidenc e. Thus,

we turn to consider whether the admission of the dy ing decla rations violated defe ndant’s constitutional right to conf ront the witnesses a g ainst him. ¶ 56 The confr ontation clause of the six th amendment to the Un i t ed S t at es C o n s t itution provides that “[i] n all criminal prosec utions, the acc used shall enjoy the right *** to be confr onted wit h the wit nesses ag ainst him.” U.S. Const., amend. VI

. This part of the s ix th amendment applies to the states throug h the fourtee nth a mendment. People v. Stechly
, 225 I ll. 2d 246, 264 (2007). The issue of whether defe ndant’s six th amendment confr ontation rig hts wer e violated involves a question of law, which we revie w de novo

. People v. Lovejoy
, 235 I ll. 2d 97, 141-42 (2009). ¶ 57 In Crawf

ord
, the United States Supreme Court held that out-of-c ourt statements that are testimonial in nature are barr ed by the conf rontation clause , reg ardle ss of whethe r the trial
court finds the statements to be reliable
, unless the witness is unavailable and the defe ndant had a prior opp o rt u n i t y for cross-e x amination. Crawf ord
, 541 U.S. at 68. The Crawf ord

-11-Court, howeve r, indicated that dying decla rations may be an historical exception to the rule
ag ainst admission of hear say testimony : “The one deviation we have found involves dying decla rations. The exis tence of that exception as a g ener al rul e of criminal hear say law cannot be disputed. [C itations.] Although many dying decla rati o n s m ay not be testimonial, there is authority for admitting even those that clea rly are

. [C itations.] We need not decide in this case whether th e Si xth Amendment incorporates an exception for testimonial dying decla r a ti o n s

. I f th is exception must be acc epted on historica l gr ounds, it is sui generis .” Id . at 56 n.6. The United States Supreme Court rec og nized this long- standing exception to the exclusion of testimonial dy

ing decla ration statements ag ain in Giles v. Calif ornia
, 554 U.S. 353, 358 (2008) (“We have previously acknow ledg ed that two forms of testimonial stateme nts w ere admitted at common law even though they wer e unconfr onted. [C itation.] The first of these

wer e decla

rations made by a speake r who was both on the brink of death and awa re that he

was dying. [C itation.] ”). The United States S up re m e Court, howeve r, has not decide d the issue. ¶ 58 This court has held the admission of dying decla rations that are testimonial in nature does
not violate the confr ontation clause

. People v. Graham
, 392 I ll. App. 3d 1001, 1008 (2009); People v. Gilmore
, 356 I ll. App. 3d 1023, 1033 (2005). This court relied not only on the dicta from C r a w ford and Giles
, but also the California Supreme Court’s decision in People v. Monterroso , 101 P.3d 956 (Cal. 2004). The Monterroso court re asoned: “[I ]f, as Crawf

ord teac hes, the confr ontation clause ‘is most natura lly rea d as ref ere nce to the rig ht of confr ontation at common law, admitting only those exceptions established
at t h e t i m e of the founding ’ [citation]
, it follows that the common law pedig ree of t h e exception fo r d ying decla rations poses no conflict with the Six th Amendment.” Monterroso , 101 P.3d at 972 (quoting Crawf ord , 541 U.S. at 54).
D e f e n d a nt s ug g ests Graham and Gilmore are incompatible with the confr ontation clause
, but the rationale this court has adopted from Monterroso explains why defe ndant’s argument fails. Acc ording ly
, in adher ence to this court’s prec edent, we conclude the dying decla rations

wer e admissible in this c ase and the admission of those statements did not violate the six th amendment, e ven if those state ments were testimonial.

¶ 59 Admission of Toolmark and F irea rms I dentification Evidence ¶ 60 Def

endant next argues the trial court err ed when it denied his motion in limine to exclude expert testimony from firea rms examiners that the car tridg e case s found at the scene of Colli ns’ shooting wer e fired from the same gun used in t h e Ke n t ro bbery

. Def endant

co n tends toolmark and firea rms identification analy sis is not g ener ally acc epted in t h e

re l evant scientific community and thus the expert testimony should have been excl u d ed under Fr ye v. Un i t ed States
, 293 F. 1013, 1014 (D.C. C ir. 1923). Alt ernatively
, defe ndant
argues that the court shou l d h av e co nducted a Frye hear ing to deter mine whether microscopic firea

rms comparison is a g ener ally acc epted technique within the rele vant scientific c ommunity

. ¶ 61 The admission of scientific testimo n y i n I l l i n o i s i s go verne d by the Frye“g ener al

-12-acc eptanc e” test. See People v. Caballes
, 221 I l l. 2d 282, 334 n.1 (2006). Under Frye
,

“scie ntific evidenc e is admissible at trial only if the methodology or scientific principle upon which the opinion is based is ‘suffic iently established to ha ve g ained g ener al acc eptanc e in the particula

r field in which it belong s.’ ” In re Commitment ofSimons
, 213 I ll. 2d 523, 529- 30 (2004) (quoting Frye
, 293 F. at 1014). The Frye s t andar d is limit ed to scientific methodology that is c onsidered “new ” or “novel.” People v. McKown
, 226 I ll. 2d 245, 257 (2007) ( McKown I

). Gene ral acc eptanc e o f a m ethodolog y “does not require that the methodology *** be acc epted by unanimity
, consensus, or even a majori t y o f experts.” Simons
, 213 I ll. 2d at 530; Donaldson v. Central Illinois Public Servic e Co.
, 199 I ll. 2d 63, 76-77 (2002), abrogated on other grounds by Simons
, 213 I ll. 2d at 530. Under Frye
, a court inquires as to the g ener al acc eptanc e of a methodology
, not the particula r conclusion rea ched by an ex aminer or the application of t he methodology in a particular case. McKown I
, 226 I ll. 2d at 255; Donaldson , 199 I ll. 2d at 77. ¶ 62 Our standard of revie w is de novo

. Simons
, 213 I l l. 2d at 530-31. “Unde r the de novo standard of revie w, the revie wing court does not ne ed to de fer to the trial court’ s judgme nt

or rea soning.” People v. Anderson
, 2012 I L App (1st) 103288, ¶ 34. “ De no vo re v i ew is completely independe nt of the trial court’s decision.” Id. “In cond u ct i n g s u ch de novo revie w, the revie wi n g court may consider not only the trial court rec ord but also, wher e appropr iate, source s outside the rec ord, including leg al and scientific article s, as well as court opinions from other jurisdictions.” Simons , 213 I ll. 2d at 531.

¶ 63 I s Fire arms I dentification Analy sis Scientific? ¶ 64 As a threshold m at t er , we o b s er v e t h at F r ye ap p l ies only to scientific e vidence

. McKown I

, 226 I ll. 2d at 254. In th i s ca s e, t h e trial judge denied defe ndant’s motion for a Frye hear ing, ruling a hear ing was unnece ssary beca use the firea

rm s co m p arison is perf ormed visually and the methodology was not a scientific proce ss. D efe ndant on appea l
argues the he aringwas re quired. ¶ 65 In McKown I

, a case we consider in further detail below, our supreme court c onsidered whether horizontal g aze ny stag mus (HGN ) testing was proper ly admitted without a Frye hear ing. Id. at 247. “The HGN test purportedly measure s ny stag mus, which has been define d

as an ab normal and involuntary rapid movement of the eyeballs up and down, or more commonly
, side to side.” Id. at 248. “B ec au s e alcohol consumption can cause ny stag mus, police office rs have been trained to chec k a person’ s eye movements when attempting to deter mine if a drive r has be en drivingwhile impaired by alcohol.” Id. at 249. ¶ 66 The McKown I court addre ssed the question of whether HGN testing is sci en t i fi c as a threshold issue. Id. at 254. The c ourt observe d that some jurisdictions have held that HGN testing is not scientific, but the majority of jurisdictions addre ssing the issue have held HGN testing to be scientific beca use it is based on a scientific principle wh i ch i s n o t common knowledg e, i.e.
, consumption of alcohol cause s the ty pe of ny stag mus measure d by the HGN test. See id. at 255 (and c ases c ited there in). The McKown I court a g ree d with the majority view, ruling HGN testing is scientific beca use the results of an HGN test are meaning less to the ave rag e per son without ex pert interpr etation. Id. at 256-57.

-13-¶ 67 I n this case , neither defe ndant nor the State has sug g ested tool m ar k an d fi re ar m s

identification materia ls are understanda ble to the lay

person absent expert testimony

. Fur thermore
, as our analy sis of this issue will demonstrate, numerous courts–including those skeptical of the methodology –have analy

zed the subject as one involving scientific or technica l evidence . Acc ording ly , we sha ll do the same in this case. 6

¶ 68 Novelty ¶ 69 We next consider the question of novelty

. A deter mination u n d er “t h e F

r ye test is

nece ssary only if the s cientific principle, t echnique or t est offe red b y t he ex pert to support his or her conclusion is ‘new ’ or ‘novel.’ ” People v. McKown
, 2 3 6 I ll. 2d 278, 282-83 (2010) ( McKow n II

); see McKown I

, 226 I ll. 2d at 257; Donaldson
, 199 I ll. 2d at 78-79. Whil e rec ognizi ng that “a ‘new ’ or ‘novel’ scientific technique is not alway s easy to identify
, espec ially in light of constant scientific advanc es in our modern era ,” our supreme court has instructed that gen erally a “scie ntific technique is ‘new ’ or ‘novel’ if it is ‘orig inal or striking’ or does ‘not rese mbl[ e] something former ly known or used.’ ” Donaldson
, 199 I ll. 2d at 79 (quotingWebster’s Third Ne w International Dictionary 1546 (1993))

. ¶ 70 The State contends we may end our inq u i ry h er e b ec au s e s i m i l ar expert firea rms testimony has been g ener ally admissible in I llinois courts since People v. Fisher
, 340 I ll. 216, 240-41 (1930). Indeed, the State maintains the t rial court and thi s court are both b ound by Fisher as controlling authority

. Def endant, rely

ing upon McKown I

, argues that latent print i d enti fication should be deeme d “novel” beca use this ty

pe of microscopic firea rm s compar ison has long been used by firea rms examiners, but the method o l og y , like HGN testing, has been subject to rec ent court challeng es and has not been subject to a Frye hear ing in I llinois . See McKown I , 226 I ll. 2d at 258. ¶ 71 Neither Fisher nor McKown I provides a definitive answe r to the question of novelty in this case

. Fisher addre ssed the admissibili ty of this ty pe of firea rms examination, but did not purport to apply Frye or deter mine whether the met h o d o l o gy was g ener ally acc epted. See Fisher , 340 I ll. at 237-41. The McKown I court did not prec isely indicate whe ther it found HGN testing was novel beca use there was a history of leg al challeng es or beca use the courts addre ssing those challeng es had rea ched differ ent conclusions reg arding t h e g ener al

acc eptanc e of HGN testing. See McKown I
, 226 I ll. 2d at 257. In any event, we will assume for the sake of argument the ballistic co m p ar i s on may be “novel,” and consider the application of Frye and its prog eny to the admission of ball i s tics evidenc e in I llinois

. See McKown I

, 226 I ll. 2d at 254.

As thi s cou rt m ay af

fi rm the tr ia l cou rt ’s rul ings o n t h e a d mi s si on of eviden ce for any 6

re aso n fou nd in the re cor d ( Donal dso n v. Central Il li nois Publ ic Ser vi ce Co.
, 313 I ll

. App. 3d 1061
, 1075 (20 00) ) and our st and ar d of re view is de nov o ( Simo ns , 213 I ll

. 2d at 530-31), the tr ia l j udge’s rul ing on t his poi nt is notre versi ble errorfo r t he r eas ons se t f ort h i n t his opi nio n.

-14-¶ 72 J udicial Notice of Gene ral Ac cepta

nce ¶ 73 “A court may deter mine the g ener al acc eptanc e of a scientific principle or methodology in either of t wo wa y s : (1 ) b ased on the results of a Frye hearing; or (2) by taking judicial notice of unequivoca l and undisputed prior judicial decisions or technica l writings o n t h e subject.” McKown I

, 226 I ll. 2d at 254. In this case , the trial court denied defe ndant’s motion for a Frye hear ing. Acc ording ly
, we will consider whether an I llinois court may take judicial notice of unequivoca l and undisputed prior judicial decisions or technica l wr i t i n gs on the subject without conductinga Fryehear ing. ¶ 74 Initially
, we revie w in some detail two rec ent opinions from our supreme court reg arding judicial notice of g ener al acc eptanc e: Simons
, which ruled judicial n o t i ce of g ener al

acc eptanc e wa s proper , and McKown I , which rule d a Fryehear ing w as re quired. ¶ 75 In Simons
, our supreme court considere d whether the t ri al court proper ly took judicial

n o t i ce of the g ener al acc eptanc e of actua rial risk assessment to assess sexually violent offe nders for a risk of rec idivism

. Simons
, 213 I ll. 2d at 533. The Simons court, noting this
court was “shar

ply divided” on the question ( id. ), explained that “experts in at least 19 other
states rely upon actua

rial risk assessment in forming their opinions on sex offe nders’ risk of

rec idivism ” ( id. at 535-36 ). Ou r s upreme court conclude d that “g ener al acc eptanc e of
actua rial risk ass es s m en t has been thoroug hly litigated in sever al states.” Id. at 537. Moreove r, the Simons court was “unable to identify an y s t at e outside of I llinois in which expert testimony based upon actua rial risk as s essm ent was deeme d inadmissible on the question of sex offen d er re cidi vism.” Id. at 539. The court further observe d that sever al jurisdictions mandated actua rial risk assessment by statute or regulation and “note[d] that the

aca demic literature contains ma ny a r ti c le s confirming the g ener al acc eptanc e of actua rial risk assessment by profe ssionals who assess sexually violent offe n d ers for risk of recidivism.” Id. at 541. Ultimately
, the Simons court conclude d that “[t] aking all of this toge ther–the case law, the statutory law, and the aca demic literature ,” it wa s “m o re than convince d that
actua rial risk assessment has g ained g ener al acc eptanc e in the psy cholog ical and psy chiatric communities.” Id. at 543. ¶ 76 In contra st, in McKown I
, as previously noted, the issue on appea l was whether the trial
court p ro p er ly admitted the results of HGN testing without first holding a Frye hear ing. McKown I

, 226 I ll. 2d at 247-48. Reg arding the issue of g ener al acc eptanc e, the McKown I
court discussed diverg ent decisions of the I llinois Appellate Court. S ee id. at 263-65. The
court also surveyed appellate court decisions from fore ign jurisdictions and found that they

wer e “as varie d as the states that have made them” reg arding the g ener al acc eptanc e of HGN testing. Id. at 272. The court co n cl uded that these decisions did “not prese nt the kind of unequivoca l or undisputed viewpoint on t h e issue upon which a court can take judicial notice.” Id. ¶ 77 Reg arding the State’s arg ument that the court could take j u d i ci al n otice of the g ener al

ac cepta nce of HGN testing “base d on the technica l writing s on the subject,” t h e co u rt deter mined it could “conside r not only the rec ord, but also ‘sources o u t s ide the rec ord, including le g al and sc ientific ar ticles, as we ll as court opinions from other jurisdictions.’ ” Id. (quoting Simons , 213 I ll. 2d at 531). The c ourt observe d “HGN testing appea rs t o have

-15-as many crit i cs as it does champions.” Id. at 275. Wit hout an “unequivoc al or undisputed

viewpoint” from the scientific literature
, the court decide d it could not “take judicial notice of the g ener al acc eptanc e of the HGN test as a reliable indicator of alcohol impairment based on these tec hnical wr itings.” Id. ¶ 78 Simons and McKown I thus instruct a court should examine the unanimity or division of I llinois courts on the admissibil i t y o f a ty pe of scientific evidenc e, then examine the unanimity or division of other jurisdictions on the question, with an emphasis on whether the issue has been thoroug hly litigated. The court may also consider

the unanimity

or di vision of opi nion in the s cienti fi c an d technica l literature on the s ubject. W ith these principles in mind, we turn to consider the admissibili ty of toolmark and firea rms identification evidenc e.

¶ 79 Gene ral Ac cepta nce of Toolmark and F irea

rms I dentification ¶ 80 As previously noted, expert firea rms testimony has been g ener ally admissible in I llinois courts for deca des. Fisher
, 340 I ll. at 240- 41. Def endant doe s not identify

any I llinois case l aw casting doubt on the gene ral admissi bility of such testimony

. Unlike McKown I
, th er e is no splitof authority

in I llinois on this iss ue. ¶ 81 Def

endant relies upon three fede ra l d i s t ri ct court decisions addre ssing challeng es to toolmark and firea

rms identification methodology : United States v. Gree n , 405 F. Supp. 2d 104 (D. Mass

. 2 0 0 5 ); United States v. Montiero
, 407 F. Supp. 2d 351, 365-72 (D. Mass. 2006); and United States v. Glynn
, 578 F. Su p p

. 2d 567 (S.D.N.Y. 2008). None of these

case s ultimately support excluding microscopic firea rms comparison evidenc e on the basis of Frye

. ¶ 82 In Gree n , the firea rms expert repe atedly conce d ed t h at h e re l i ed o n h is subjective j u d gm en t and “[t] here wer e no ref ere nce materia ls of any specific ity
, no national or even local databa se on which he relied.” Id. at 107. The trial judge questioned the reliability of the expert’s methodology

. Id. at 119-20. Indeed, the judge opined: “The more courts admit this 7 ty pe of toolmark evidenc e without requiring documentation, proficie ncy testing, or evidenc e of reliability
, the more sloppy prac tices will endure ; we should require more.” Id. at 109. Yet the judge in Gree n allowed the firea rms testimony
, based primarily on the u n a n im o us judicial

acc eptanc e of such testimony
, but limit ed the expert to describing the simil arities in the shell casing s he observe d and barr ed the expert from opining t h e ca s i n gs come from a specific pistol “to the exclusion o f every other firea rm in the world.” (Interna l quotation marks omitted.) Id. at 124. ¶ 83 Simi lar l y , i n Mo n t i er o , t h e j u d ge found the underly ing principles behind fire arm identification may be scientifica lly valid, but “ther e is no reliable *** scientific methodology which will curr ently permit the expert to testify that [a casing and a particula r firearm are]

a ‘match’ to an absolute cer tainty
, or to an arbitra

ry deg ree of statistical cer

tainty .” Montiero
, 407 F. Supp. 2d at 372. The Montiero judge found the witness qua lified, but his testim ony

I n co ntr ast , pur sua nt to Fry e , I ll ino is cou rt s a re not con cer ned wit h the a ppl ic at ion of th e 7

m et hodo logy in a par ti cul arca se. M cKown I , 226 I ll . 2d at255 ; Donal dso n , 199 I ll . 2d at77.

-16-was not adequa tely documented or subject to peer re v i ew. Id. at 374. The judge allowed M o n tiero’s motion to exclude ballistics without prejudice

. Id. at 375. In g eneral
, t h e Montiero judge found the methodology of firea rms identification is sufficie ntly reliable ( id.
at 372) and would allow a qual i fi ed ex aminer who has documented and had a second qualified examiner ver ify her results to testify based on those results that a car tridg e case matches a particula

r firea rm to a rea sonable deg ree of ballistic cer t ai n t y ( id. at 375). The judge would bar te stimony “that ther e is a matc h to an exact statistical cer tainty .” Id. ¶ 84 L ikewise, in Glynn
, the district court judge was conce rned with the deg ree of subjectivity involved in firea

rms identification. Glynn
, 578 F. Supp. 2d at 572. The Glynn judge explained t h at while ot her forms of ex pert testim ony , including medical ex pert testim ony , may involve subjective judgme nts, “ballistics co mparison lacks defining standards to a deg ree that ex ce eds most other kinds of fore nsic expertise.” Id. at 574. Thus, the judge conclude d “ballistics examination not only lacks the rig or of scienc e but suffe rs from g reater

uncer tainty than many other kinds of fore nsi c ev i dence .” Id. Neve rtheless, the judge

con cl u d ed t he “methodolog y has g arne red sufficie nt empirica l support as to war rant its admissibili ty .” Id. Acc ording ly
, the judge ruled the ballistics evidenc e was admissible, althoug h the expert would be limit ed to testifying matches wer e “more likely than not.” See id. at 574-75. ¶ 85 There are a number of other report ed fede ral district court decisions involving similar challeng es. S ee , e. g

. , United States v. Otero
, 849 F. Supp. 2d 425 (D.N.J. 2012); United States v. W

illock
, 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 eng ag ed in leng thy and detailed hear ings, involving multipl e witnes s an d t he prese ntation of documentar y evidenc e. Otero
, 849 F. Supp. 2 d at 4 29 (three -day hear ing at which the parties “submitted various documents”) ; Taylor , 663 F. Supp. 2d at 1171 (two- day hear ing) ; Montiero
, 407 F. Supp. 2d at 355 (sixday evidentiar

y hear ing and “e x tensive documentar y rec ord reple te with photogr aphs, demonstratives, and journal article s”). In none of these judicial decisions–including those specific ally cited by defe nd a nt in th is a p p e a l–did a court rule traditional microscopic firea rms compar ison testimony

was g ener ally

inadmissible. ¶ 86 Of course , in fede ral courts, admission of expert testimony is g overne d by the standar ds
set forth in Daubert v. Merre ll Dow Pharmace uticals, Inc.
, 509 U.S. 579 (1 9 9 3 ), wher eas I llinois adher es to the Frye test. Yet in Daubert
, the United States Supreme Court aff irmed the continued rele vance of whether the tec h n i q ue at issue is g ener ally acc epted within the scientific community

. Id. at 594. “Widesprea d acc eptance ca n b e an important fac tor in ruling particula

r evidenc e admissible, and ‘a known technique which has been able to attrac t only minimal support within the community ’ [citation] may proper ly be viewed with skepticism.” Id. (quoting United States v. Downing , 753 F.2d 1224, 1238 ( 3d Cir. 1985)). ¶ 87 T h u s , s o m e o f t h e afor ementioned fede ral courts have specific ally m en t i o n ed o r discussed the i s s u e of g ener al acc eptanc e in ruling on rec ent challeng es to toolmark and firea rms identification analy sis. For example, in Otero
, the court observe d the AFT E theory of firea rms and toolmark identification is widely acc epted in the fore nsi c co m m u n ity and specific ally in the community of firea rm and toolmark examiners. Otero
, 849 F. Supp. 2d at 435. The W

illock court simil arly found the AFT E theory of firea rms-re lated toolmark

-17-identification has been “g ener ally acc epted within the field of toolmark examiners.” W illock
, 696 F. Supp. 2d at 571. In Taylor
, the court found the use of pattern matching underly ing the AFT E theory “is g ener ally acc epted among firea rms examiners in the field.” Taylor
, 663 F. 8 Supp. 2d at 1178. The Montiero court found it “cle ar that t h e community of firea rm and toolmark examiners acc epts the curr ent identification methodology as re l i able” and “the community of toolmark examiners seems virtually united in their acc eptanc e of the curr ent technique.” Montiero , 407 F. Supp. 2d at 372. ¶ 88 Neither the defe ndant nor the State addre sses the case law from other states adher ing to the Frye test, but our revie w of such case s reve als the results are the same as t h o s e in the fede ral courts. For example, in Fleming v. State
, 1 A.3d 572 (Md. Ct. Spec. App. 2010), the trial court held a three -day Frye hear ing on firea rms toolmark identification and conclude d the traditional compar ative microscope matching technique was admissible. Id. at 575. On 9
appea l, the Fleming court ruled that even if the admission of the evidenc e was not harmless

err or, t he appellate court would hold the t rial court did not err in admitting such evidenc e. Id. at 585. The court concluded
, n o t wi t hstanding the curr ent debate over the issue, courts have consistently found the traditional method of firea rms toolmark analy sis to be g ener ally

acc epted within the scie ntific community and re liable. Id. at 590. ¶ 89 Simi larly
, in Commonwealth v. W h i t a cr e , 2005 PA Super 221, the Superior Court of Pennsylvania affirmed the trial judge ’s decision to admit compar ison m i cr o s cope analy sis (albe it following a more cursor y hear ing than in Fleming ), rul ing the methodology was gen er ally acc epted within the scientific community consisting of firea rms experts and a number of signific ant g overnme n t al bodies within and without Pennsylvania. Id. ¶ 14. In Jones v. United States
, 27 A.3d 1130 (D.C. 2011), the District of Columbi a Court of Appea ls aff irmed the trial judge ’s decision to not conduct a Frye hear ing reg arding firea rms pattern matching
, concluding n o n e of the evidenc e proff ere d sug g ested the methodology was no longe r g ener ally acc epted. Id. at 1138. In People v. Givens
, 912 N.Y.S.2d 855 (N.Y. Sup. Ct. 2010), the trial judge
, afte r revie wing the case law, scholarly repor ts and article s, denied the defe nse re quest to exclude firea rms and toolmark identification or conduc t a Fryehear ing, based pr imarily

on the unanimous judicial ac cepta nce of such testimony

. Id. at 857. ¶ 90 Def

endant also relies upon the cr iticism of the methodology found in scholarly repor

ts and article s. National Resear ch Council, Commi ttee on I dentifying the Nee ds of the For ensic Science s Communi ty et al.
, Strengthening Forensic Scienc e in the United State s: A Path F o r wa r d (200 9 )
, a v a il

a b le a t htt p :/ /w ww

. n a p

. e d u /c a ta lo g

. p h p ?re c o r d

_ id = 1 2 5 8 9 ( h e r e in a f

te r , NRC Report); Ri char d Grzy bowski et al.
, Firearm/Toolmark Identification: Passing the Reliability Test Under Fede ral an d State Evidentiary Standards
, 35 AFT E J

. 209, 213 (2003). Fe dera l and state courts considering these materia ls never theless have found

T h e tr ia l cou rt al so fou nd a newe r m et hod of pat te rn m at chi ng, invol ving con sec uti vely 8

m at chi ng st ri ae, was genera ll y acc ept ed among fi re ar m s exa m ine rs Tayl or , 663 F. Supp

. 2d at 1178

.

T he tr ia l cou rt , however
, exc lud ed te st imony bas ed on the con sec uti vely ma t chi ng s tr ia e 9
te chn iqu e, fi ndi ng it was not genera ll y acc ept ed. Fle ming
, 1 A.3d a t 5 7 5- 76. T he con sec uti vely

m at chi ng str ia e t ech niq ue i s no t a t i ssu e i n t his app eal

.
-18-m i crosc opic firea rms compar ison methodology to be g ener ally acc epted and declined t o exclude the ty

pe of testimony at issue in this case

. See, e.g. , Otero
, 849 F. Supp. 2d at 427, 430, 438 (citing NRC Repor t, supra at 150, and Grzy

bowski et al.
, supra at 211); W illock
, 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 ( Grzy bowski et al.
, supra at 213); Jones
, 27 A.3d at 1137 n.7 (NRC Report); Fleming
, 1 A.3d at 1 0 4
, 1 0 6 (N R C Report). I n Glynn
, the judge relied in part on a differ ent NRC repor t to conclude the “methodolog y has
g arne red sufficie nt empirica l support as to war rant its admissibili ty .” Glynn
, 578 F. Supp. 2d
at 574 (citing Daniel L

. Cork et al.
, Ba llist ic Imag ing 30-46 (2008))

. Although the scholarly

ma teria ls cited by defe ndant and the defe ndants in other case s may raise substantial critici s ms of the methodology at issue in this case , no court has found these critiques s u ff i ci ent to conclude the methodolog y is no longe r g ener ally

acc epted. ¶ 91 In short, in re ce n t y ea rs , fe d er al an d s t ate courts have had occa sion to revisit the admission of expert testimony based on toolmark and firea rms identification methodology

. Such testimony has been the subject of leng thy and detailed hear ings, and measure d ag ainst the s t an d ar d s of bot h Frye and Daubert

. Courts have considere d scholarly criticism of t he methodology , and occ asionally place d limit ations on the opinions experts may offe r base d

on the methodology

. Yet the judicial decisions uniformly conclude toolmark and firea rms id entification is g ener ally acc epted and admissible at trial. Acc ording ly
, we conclude the tri a l
court did not err in ruling the testim o n y in this case was admissible and did not require a Frye hear ing, particula

rly wher e the trial judge barr ed the witnes s es from testifying their opinions were “ within a rea sonable de g ree of scientific cer tainty .”

¶ 92 Other- Crimes Evidence ¶ 93 Def

endant further argues the trial court err ed in admitting evidenc e that defe ndant stated he sol d bullets to Colli ns. Def endant maintains t h e t es t i mony was irreleva nt, other-c rimes evidenc e. Under the common law, other-c rimes evidenc e g ener ally is inadmissible if offe red only to demonstrate the defe nd an t’s propensity to commit the charg ed crime. People v. Donoho
, 204 I ll. 2d 159, 1 6 9 ( 2003). Evidence reg arding other crimes g ener ally is admissible if offe red to prove any rele vant fac t other than propensity

. Id. at 170

. Fo r ex ampl e, such other-a cts evidenc e is admissible to show:
“ ‘ modus operandi
, motive, knowledg e, intent, absenc e of mistake or acc ident, [ t h e] defe ndant’s state of mind, absenc e of an innocent mind frame or the prese nce of criminal intent, circ umstances or context of [the] defe ndant’s arr est, place ment of [t he] defe ndant in proxi mity to the time and place of the crim e, identification of the wea pon used in a crime, consciousness of guilt, to show a common desig n, scheme or plan, circ umstances of a crime char g ed that woul d otherwise be unclea r, whether a crime charg ed was actua lly committed, opportunity or prepa ration, a defe ndant’s dislike or attitude toward the victim, to explain an otherwise implausible fac t rela ting to the cr i m e ch ar g ed, to contra dict on rebuttal a defe ndant’s denials, to disprove a defe nse of entra pment and to disprove an alibi defe nse.’ ” People v. Moser
, 356 I ll. App. 3d 900, 913 (2005) (quoting People v . Millighan , 265 I ll. App. 3d 967, 972-73 (1994))

.

-19-In this case, the State introduced the testimony at i ssue t o show consciousne ss of guilt. “A

false exculpatory statement is ‘probative of a defe ndant’s consciousness of guilt.’ ” People

v. Homme rson , 399 I ll. App. 3d 405, 410 (2010) (quoting People v. Shaw
, 278 I ll. App. 3d 939, 951 (1996))

. The State argued defe ndant’s statement he sold bullets to Coll i n s was a false exculpatory statement beca use defe ndant wanted to avoid reve aling any d i spute betwee n hi m s el f an d Colli ns reg arding a gun. We also note defe ndant’s purported sale of bullets also would tend to support defe ndant’s claim Colli ns had confide d in him that other individuals wer e “f***ing with him”– a claim which, if believed, would divert attention from defe ndant as a suspect in the shooting. Acc ording ly
, we agree with the State that defe ndant’s
statement wa s releva

nt and admissible to show consciousness of guilt.

¶ 94 The Admission of Police Testimony Reg ardingDef

endant’ s Statement ¶ 95 Def

endant additionally argues the trial court should have suppressed testimony reg arding defe ndant’s statement that he was prese nt at the shooting made in the 5th District l o ck up

are a. The State responds defe ndant has forf eited this issue by failing to raise it in his posttrial motion. People v . Thompson , 238 I ll. 2d 598, 611-13 (2010). In g ener al, fa ilure to raise an issue in a post trial motion forf eits the i ssue on appea l. E.g.
, People v. Jo h nson , 238 I ll. 2d 478, 484 (2010) (citing People v. Enoch
, 122 I ll. 2d 176, 186 (1988))

. Def endant cites People v. T orres , 283 I ll. App. 3d 281, 289 (1996), f or the proposition that the i ssue was proper ly
prese rved for revie w by his written motion to suppress which resulted in an evid enti ary hear ing. The Torres court, howeve r, rec ognized forf eiture exis ted in that case

. Id. Moreove r, Torres relied on People v. Dicke rson , 69 I ll. App. 3d 825, 828 (1979), which predates Enoch and its prog eny

. When a defe ndant fails to challeng e the denial of his motion to suppress in a posttrial motion, any

claimed e rror

rela ting to the motion to suppr ess is f orfe ited. People v. Cosby , 231 I ll. 2d 262, 271-73 (2008). ¶ 96 Def

endant arg

ues this issue may be revie wed as plain err or. I llinois Supreme Court Rule 615(a) cre ates an exception to the forf eiture rule by allowing courts of revie w to note “[p] lain

err ors or defe cts aff

ecting substantial rig hts.” Under I llinois ’ plain er r o r d octrine, a revie wing court may consider a

forf eited cla im when: “ ‘( 1) a clea

r or obvious err or occ urre d and the e vidence is so closely balanc ed that the

err or alone threa

tened to tip the scale s of justice ag ainst the defe ndant, reg ardle ss of the seriousness of the err or, or (2) a clear o r o b vious err or occur red and that err or is so

s er i ous that it aff

ecte d the fairness of the defendant’s trial and challeng ed the integri t y of the judi cial process, reg ardle ss of t he close ness of the e vidence .’ ” Johnson , 238 I ll. 2d at 484 (quoting People v . Piatkowski , 225 I ll. 2d 551, 565 (2007)).
The plain err or doctrine is intended to ensure that a defe ndant rec eives a fair trial, but it does
not guara ntee ever y defe ndant a perf

ect trial. Johnson
, 238 I ll. 2d at 484. Rather than
operating as a g ener al saving s clause
, it is construed as a narr ow and limit ed exception to the ty pical for feiture rule a

pplicable to unprese rved claims. Id. The burden of pe rsuasion re sts with the defe ndant under both prong s of the plain err or analy sis. People v. Sargent
, 239 I ll. 2d 166, 190 (2010). The ultimate question of whether a forf eited claim is revie wable as plain

err or is a question of law

revie wed de novo

. Johnson , 238 I ll. 2d at 485.

-20-¶ 97 Gene rally
, the first step of plain-er ror revie w is to deter

mine whether any err or occur red. Thompson
, 238 I ll. 2d at 613. In this case , howeve r, defe ndant solely relies on the first prong of plain-er

ror revie w, i.e.
, a clea

r or obvious err or occur

red an d t h e evidence is so closely balanc ed that the er ro r alone threatened to tip the scale s of justice ag ainst the defe ndant. Where the only basis for plain-er ror revie w is a claim that the evidenc e was closely balanc ed,

we need not first look at whether an err or occur red. People v. W

hite
, 2011 I L 109689, ¶ 148. “Where the only basis proff ere d for plain-er

ror revie w is a claim that the evidenc e is closely balanc ed, an assessment of the i mpact of an allege d evidentiar y err or i s rea dily made after

rea ding the rec ord.” Id. “When it is clear that the alleg ed err or would not ha ve aff ecte d the
outcome of the case , a co u rt of revie w need not eng ag e in the meaning less endea vor of deter mining whe ther e rror

occur red.” Id. ¶ 98 In this case , C o l l i n s i d en t i fi ed the shooter as “Elliot” from “71st and Champlain.” Although the defe nse produce d voting rec ords indicating other individuals with the first or last name of Elliot live d i n t he vicinity
, the State adduce d evidenc e that a databa se sear ch indicated defe ndant was the sole Elliot living in the vicinity of 71st Street and Champlain Avenue

. Only one of the Elliots identified by the defe nse resided on Champlain Avenue ; he

was born in 1912. A t ri er o f fa ct could rea sonably conclude a man of advanc ed ag e was unlikely to have been involved in a dispute with Colli ns over a stolen gun. In any event, there

was n o ev i d en ce that any of the Elliots identified by the defe nse had any relationship to Colli ns or to the incident. In contra st, defe ndant acknow ledg ed to police he knew Colli ns and Odoms confirme d defe ndant knew Collins. Kent i dentified defenda nt as t he shoot er in the Kent robber

y ; the expert testimony established the car tridg e case s in the Kent robber y wer e fired by the same wea

pon which fired the car

tridg e case s rec overe d at the scene in this case

. ¶ 99 The rema inder of the defe nse case did not signific antly alter this balanc e of the evidenc e. The de fense produce d testimony from Steppe, who did not rec og nize Colli ns or any of the individuals he observe d running from the scene of the sh o o t i n g. Detective Crowder

rec og nized only Odoms as one of the individuals at the scene

. Odoms had turned awa y from the s cene whe n h e heard gunshots and thus did not witness the s hooting. Odoms provided

s t at em ents to the police ref err ing to Big Mike, but never stated to ASA Gillespie that Bi g Mike had a gun or i dentified Big Mike as t he shoot er. W illiams testified defendan t wa s at h er h o u s e at approximately 4 to 4:20 p.m. on the date of the shooting, well afte r t h e para medics wer e dispatched at 3:57 p.m. Given thi s re cord, we conclude
, even if the trial
court err ed, the evidenc e was not closely balanc ed and defe ndant cannot establish plain err or in this case.

¶ 100 The Que stioning of the Jury Venire ¶ 101 L astly
, defe ndant contends he was denied a fair trial o n t h e gro u n d that the trial court failed t o qu es t i on prospec tive jurors in acc ordanc e with the amende d version of I llinois Supreme Court Rule 431(b) (ef f. May 1, 2 0 0 7). Supreme Court Rule 431(b) imposes a

sua sponte duty on trial courts to que stion prospe ctive jurors, individually or in a g roup, as to whether

they understood and a cce pted t he principles outlined in People v . Zehr , 103 I ll. 2d 472, 477 (1984), “ that a defe ndant is pr esumed innocent, that he is not require d to of fer

-21-any evidenc e in his own behalf
, that he must be proved guilty beyond a rea sonable doubt, and that his failure to testify in his own beh al f ca n n o t be held ag ainst him.” See People v. Hayne s , 399 I ll. App. 3d 903, 912 (2010). ¶ 102 The State responds defe ndant forf eited this issue by failing to object to the trial judge ’s questioning of

the venire as notsubstantially complying w ith Rul e 431(b) at the time or in the pos ttrial motion. Def

en d ant aga in argues for plain err or review, asserting the evidence in this case was closely balanced

. Fo r t h e rea sons previously stated, we conclude the evidenc e wa s not closely

balanc ed in this case. A ccor dingly , defe ndant’s ar gument fails.

¶ 103 CONCLUSI ON ¶ 104 For all of the afor ementioned rea sons, the judgme nt of the circ uit court of Cook County is affirme d.

¶ 105 Affir

med.

-22-