ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Brewer, 2013 IL App (1st) 072821

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

TYRONE BREWER, Defendant-Appellant.

 District & No. First District, Third Division

Docket No. 1-07-2821

Filed March 29, 2013

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendant’s convictions for first degreemurder and discharging a firearm

in a shooting death were upheld over his contentions, inter alia, that

potential jurors were not asked whethertheyaccepted the Zehr principles,

that the medical examiner who performed the autopsy did not testify, that

his sentence was excessive, and that the mittimus should be corrected to

reflect only one murder, since the violation of Rule 431(b) was not plain

error, the State’s failure to present the examiner who performed the

autopsy was not reversible error, and his sentence was not an abuse of

discretion, but a correction of the mittimus was ordered.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 08-CR-13128; the

Hon. James B. Linn, Judge, presiding.

Judgment Affirmed; mittimus corrected.
Counsel on

Appeal

Rachel Moran, of State Appellate Defender’s Office, of Chicago, for

appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and

Jon Walters, Assistant State’s Attorneys, of counsel), for the People.

Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.

Justices Lavin and Sterba concurred in the judgment and opinion.

OPINION

¶ 1 A jury found Tyrone Brewer, the defendant, guilty of first degree murder and personally

discharging a firearm in the shooting death of Jeremy McEwen. Brewer was sentenced to 50

years’ imprisonment on the first degree murder conviction and a consecutive 30 years for

personally discharging a firearm that caused McEwen’s death. Brewer appealed his

conviction and sentence raising the following six issues for review: (1) the trial court violated

Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) by failing to ask potential jurors

during voir dire whether they understood and accepted the principles set forth in People v.

Zehr, 103 Ill. 2d 472 (1984); (2) the trial court erred in failing to give a limiting instruction

after the State rehabilitated codefendant Finley by presenting his videotaped prior consistent

statement as substantive evidence; (3) his sixth amendment right to confront and crossexamine witnesses was violated because the medical examiner who performed the autopsy

did not testify; (4) his right to present a defense was violated because the trial court barred

his expert witness from testifying about his police related post-traumatic stress disorder

(PTSD), which was relevant in assessing the credibility of his statement; (5) his 80-year

sentence was excessive; and (6) the mittimus should be corrected to reflect only one murder

conviction.

¶ 2 The appellate court addressed only one issue, reversing Brewer’s conviction and

remanding for a new trial after finding the trial court violated Illinois Supreme Court Rule

431(b) (eff. May 1, 2007), by failing to ask potential jurors during voir dire whether they

understood and accepted the principles set forth in People v. Zehr, 103 Ill. 2d 472 (1984).

People v. Brewer, No. 1-07-2821 (2010) (unpublished order under Supreme Court Rule 23).

Our supreme court denied the State’s petition for leave to appeal but entered a supervisory

order directing the appellate court to vacate and reconsider its judgment in light of People

v. Thompson, 238 Ill. 2d 598 (2010) (trial court’s violation of amended Rule 431(b) was not

structural error requiring automatic reversal nor grounds for reversal under second prong of

plain error analysis absent a showing error affected fairness of trial or integrity of judicial

*Justice Salone originally sat on the panel of this appeal and participated in its disposition.

Justice Salone has retired; therefore, Justice Hyman serves in his stead.

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process). People v. Brewer, No. 110429 (Ill. Jan. 26, 2011) (supervisory order). We now

address the Rule 431(b) issue in light of Thompson as well as the other five issues raised by

the appeal. For the following reasons, we affirm.

¶ 3 I. Factual Background

¶ 4 Jeremy McEwen was fatally shot on June 26, 2001, at about 10:15 p.m., while sitting in

his car near 8800 South Clyde Avenue in Chicago. Kimberly Smith, a friend of McEwen’s,

was in the car with him when the shooting occurred. She and McEwen had agreed to meet

at a gas station on 87th Street before heading downtown for dinner. Smith arrived first.

McEwen then pulled up to her car and told her to follow him. When they got to Clyde

Avenue, Smith parked in front of McEwen. She got out of her car and saw two men

approaching. She quickly got into McEwen’s car. McEwen was holding money in his left

hand. Smith put her hand over McEwen’s hand and pushed it down, because she did not want

the two men to see the money. While McEwen and Smith were still parked, the two men

approached the car. One man was wearing a black hoodie and had his hair in braids; the other

man wore a red shirt and had low-cut hair. The man in the red shirt was standing three cars

away and looking around. The man in the black hoodie approached the driver’s side window,

pointed a gun at McEwen and said, “this is a stickup, give me your money.” McEwen did not

say anything but looked at the gunman and turned down the volume on the car radio. The

man in the black hoodie shot the gun once in the air. The man in the red shirt was now

standing next to Smith’s door, preventing her from getting out. The shooter again demanded

money. McEwen started to drive away, and the shooter shot into the car. McEwen continued

driving, hit a car, drove onto a lawn, and came to a stop when he crashed into a fence. After

he was shot, Smith heard McEwen say “T-Man.” Smith later identified the man in the red

shirt in a lineup as the lookout.

¶ 5 Police officers investigating the shootinglearnedBrewer went bythe nickname “T-Man.”

The morning after the shooting, they picked up Brewer at his girlfriend’s house and took him

to the police station, where he was placed in an interrogation room and advised of his

Miranda rights. During initial questioning, Brewer implicated himself and two friends,

Rashaune Finley and Terrell Ivy, in the murder but said Finley was the shooter. When the

police questioned Brewer again, later that day, he identified himself as the shooter and gave

a handwritten statement to former Assistant State’s Attorney Patrick Brosnan.

¶ 6 According to Brewer’s statement, which was published to the jury, on the morning of the

shooting he decided he was going to rob someone. At around 9:30 p.m., Brewer, Finley, and

Ivy were parked at a gas station when they saw McEwen drive up in a white Oldsmobile

Cutlass with expensive-looking tire rims. The men agreed Brewer would rob McEwen and

Finley would be the lookout. Ivy would drive the getaway car if Brewer and Finley did not

steal McEwen’s car. The men followed McEwen in their car as he drove a few blocks before

stopping to pick up a female friend. While McEwen and his friend were sitting in the car,

Brewer and Finley approached on foot. Finleywalked past McEwen’s car and looked around

to make sure no one was watching. Brewer, who had a gun underneath his hooded sweatshirt,

walked up to the open driver’s side window. He pointed the gun at McEwen, demanded

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money, and told McEwen to get out of the car. When McEwen did not respond, Brewer

became angry and fired the gun in the air. He pointed the gun at McEwen again. As McEwen

put the car into drive and began to pull away, Brewer fired at McEwen, hitting him in the

chest. Brewer saw McEwen drive off and crash into a yard around the corner. Brewer put the

gun under his hoodie, and he and Finley walked away. When Brewer heard someone calling

“T-Man,” he and Finley began to run. A few people chased them but they split up and both

got away. While Brewer was running, he threw the gun into a yard.

¶ 7 Codefendant Rashaune Finley, who testified after entering a plea agreement with the

State, corroborated Brewer’s version of events. Finley said he knew Terrell Ivy and Brewer

from school, and Brewer went by the nickname “T-Man.” On the afternoon of June 26, 2001,

Brewer told Finley he sold marijuana to a man who paid with counterfeit money and he was

going to find the man and get his money. Brewer offered Finley and Ivy $500 each to act as

lookouts and to beat the man up if he did not pay. Later that evening, Brewer, Finley, and Ivy

were parked at a gas station when they saw McEwen drive up in a white Oldsmobile Cutlass

with expensive tire rims. Brewer told Finley that McEwen was the man who gave him

counterfeit money. The men followed McEwen as he drove out of the gas station and then

stopped a few blocks away at 89th Street and Clyde Avenue to pick up a female friend.

Finley saw Brewer had a .45-caliber or 9-millimeter gun in his lap, which he put in the front

pocket of his hooded sweatshirt. Brewer and Finley approached the carfrom the back. Finley

acted as a lookout. Brewer went to the driver’s side window, said something to McEwen, and

then fired a shot in the air. When McEwen began to drive off, Brewer fired into the car at

McEwen. As Finley and Brewer ran away, Brewer took off his hoodie, wrapped the gun in

it, and threw it in a yard. Finley was arrested on June 27, 2011, and gave a videotaped

statement to the police that was consistent with his trial testimony.

¶ 8 The shooting occurred near Jesse Owens Park, and several witnesses who were in the

park testified at trial. Joseph Fields said he heard a “pop” that sounded like a firecracker then

saw McEwen’s car drive off before he heard a crashing sound. As Fields walked toward 88th

Street, he saw two men, one wearing a red shirt and the other wearing a hoodie. Antwan

Sneed testified he also heard a loud pop, then saw McEwen’s car speeding down Clyde

Avenue before it lost control near 88th Street. Sneed ran toward the car and “noticed two

dudes in hoodies walking into the dark.” Sneed said Brewer, whom he knew as “T-Man,”

was wearing a black hoodie. Sneed called out “T-Man” several times, but Brewer picked up

his pace and ran away. Sneed later identified Brewer and Finley in a lineup as the two men

he saw leaving the scene of the shooting.

¶ 9 Roy Ferguson, who was sitting in his car near the park on the night of the shooting,

testified for Brewer. Ferguson said he had known Brewer for almost 10 years and also knew

Rashaune Finley. Ferguson identified Finley as the shooter and said he did not see Brewer

that night. Ferguson said Finley walked up to a white car, put a hood on, shot two or three

times into the car, and ran off.

¶ 10 The autopsy was performed by Dr. Thamrong Chira, who was no longer employed with

the Cook County medical examiner’s office at the time of trial. Dr. Joseph Cogan, an

assistant medical examiner with the Cook County medical examiner’s office, testified

concerning Dr. Chira’s autopsy report. The autopsy revealed McEwen died from a single

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gunshot that entered the left side of his chest and exited on the right side of his abdomen. The

bullet pierced McEwen’s pericardial sac and right ventricle and lacerated his diaphragm,

bowel, and liver. McEwen’s death was classified as a homicide.

¶ 11 On cross-examination, Dr. Cogan said the autopsy report and photographs showed no

evidence of close-range shooting, such as gunshot residue. He said, however, evidence could

be blocked by a victim’s clothing and would not be present if the shooter was more than 18

inches from the victim. When asked if the evidence could be affected by whether the shooter

held the gun in his right or left hand, Dr. Cogan stated, “I don’t really get into that. I’m sure

Dr. Chira doesn’t either. The person could be shot with either the right hand or left hand. It

doesn’t make too much difference. It depends on the police investigation. Is the direction of

the gunshot wound consistent with evidence or historyand things like that. It’s not something

I could determine.”

¶ 12 After closing arguments, the jury found Brewer guilty of first degree murder and

personally discharging a firearm that proximately caused McEwen’s death. Brewer filed a

motion for a new trial, which was denied. The court sentenced Brewer to 50 years’

imprisonment for first degree murder and an additional consecutive 30 years’ imprisonment

for personally discharging a firearm. A motion to reconsider the sentence was denied.

¶ 13 II. Analysis

¶ 14 A. Rule 431(b)

¶ 15 Brewer first contends reversal is required because the trial court failed to comply with

Illinois Supreme Court Rule 431(b) by failing to ask potential jurors during voir dire whether

they understood and accepted the principles set forth in People v. Zehr, 103 Ill. 2d 472

(1984). Brewer does not contend the error resulted in a biased jury, but rather, maintains the

closeness of the evidence requires a finding of plain error under the first prong of the plain

error analysis. He asserts Thompson only applies to plain error under the second prong and

thus review of the Zehr violation is not forfeited for purposes of appeal. We disagree.

¶ 16 In Thompson, the supreme court construed the 2007 version of Rule 431(b) and held, “[a]

violation of Rule 431(b) does not implicate a fundamental right or constitutional protection,

but only involves a violation of th[e] court’s rules.” Thompson, 238 Ill. 2d at 614-15. Despite

its amendment to the rule, the court found it could not concludeRule 431(b) questioning was

indispensable to the selection of an impartial jury. Id. at 615. The court also rejected

defendant’s request for plain error review under the second prong, finding defendant failed

to establish the trial court’s violation of Rule 431(b) resulted in a biased jury. Id. In addition,

the court held that defendant had not met his burden of showing the error affected the

fairness of the trial or challenged the integrity of the judicial process, as the prospective

jurors received some of the required Rule 431(b) questioning and the venire was admonished

and instructed on Rule 431(b) principles. Id. at 611.

¶ 17 Brewer argues the evidence is closely balanced. He notes during deliberations, the jury

sent out two notes containing five questions. Additionally, he contends there was no physical

evidence tying him to the crime and his conviction turned on several conflicting accounts.

First, defense witness Roy Ferguson, who knew both Brewer and codefendant Rashaune

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Finley, testified defendant was not present. Further, Brewer notes Kimberly Smith, who was

in the car with the victim at the time of the shooting, identified Finley as the shooter in a

lineup where both defendant and codefendant were present. Additionally, Brewer argues

codefendant Finley’s identification of him as the shooter is suspect because his testimony

was given in exchange for a lower sentence in his own case. Finally, Brewer argues his

inculpatory statement is unreliable because he gave it while in an unmedicated and posttraumatic state. Brewer asserts all these factors establish the closeness of the evidence.

¶ 18 Where a defendant fails to object to an error at trial and include the error in a posttrial

motion he or she forfeits ordinary appellate review of that error. People v. Johnson, 238 Ill.

2d 478, 484 (2010) (citing People v. Enoch, 122 Ill. 2d 176, 186 (1988)). Consequently,

Brewer forfeited, or procedurally defaulted, his challenge to the Zehr violation by failing to

object and raise his claim in a posttrial motion.

¶ 19 Under Illinois’s plain error doctrine, a reviewing court may consider a forfeited claim

when:

“ ‘(1) a clear or obvious error occurred and the evidence is so closely balanced that the

error alone threatened to tip the scales of justice against the defendant, regardless of the

seriousness of the error, or (2) a clear or obvious error occurred and that error is so

serious that it affected the fairness of the defendant’s trial and challenged the integrity

of the judicial process, regardless of the closeness of the evidence.’ ” Johnson, 238 Ill.

2d at 484 (quoting People v. Piatkowski, 225 Ill. 2d 551, 565 (2007), citing People v.

Herron, 215 Ill. 2d 167, 186-87 (2005)).

¶ 20 The doctrine is intended to ensure a defendant receives a fair trial, but it does not

guarantee every defendant a perfect trial. Johnson, 238 Ill. 2d at 484. Rather than operating

as a general savings clause, it is construed as a narrow and limited exception to the typical

forfeiture rule applicable to unpreserved claims. Id.

¶ 21 We typically undertake plain error analysis by first determining whether error occurred

at all before proceeding to consider whether either prong of the doctrine has been satisfied.

People v. Sargent, 239 Ill. 2d 166, 189-90 (2010). The burden of persuasion rests with the

defendant under both prongs of plain error analysis. Id. at 190. But, the ultimate question of

whether a forfeited claim is reviewable as plain error is a question of law that is reviewed de

novo. Johnson, 238 Ill. 2d at 485.

¶ 22 Under the first prong of plain error, the defendant must show the evidence was “so

closely balanced the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error.” Piatkowski, 225 Ill. 2d at 565. The question of

whether the evidence is closely balanced is distinct from the challenge of the sufficiency of

the evidence. Id. at 566.

¶ 23 We reject Brewer’s characterization of the evidence as closely balanced for the purpose

of plain error analysis; to the contrary, in our view, the strength of the evidence is

overwhelming. First, therewere several witnesses to the shooting, including KimberlySmith,

who was in the car with McEwen when he was shot. Smith provided a physical description

of the perpetrators and testified she heard McEwen say “T-Man” after he was shot. Smith

later identified the man in the red shirt in a lineup as the lookout. Joseph Fields and Antwan

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Sneed were in a park near the shooting. Both men heard a loud “pop” that night, and then

saw the victim’s carspeeding down the street before it crashed. Fields saw two men nearby,

one in a red shirt and one wearing a black hoodie. Sneed also saw two men in hoodies

walking away from the scene. Sneed identified Brewer, whom he knew as “T-Man,” as one

of the men and said that when he called after him, Brewer ran away. Former Assistant State’s

Attorney Brosnan testified he took Brewer’s inculpatory handwritten statement on June 28,

2001, which was published to the jury. Detective Patrick Golden testified when Brewer was

arrested, he implicated himself and codefendants in the murder. Detective Russell Sutherland

interviewed Brewer, who said that Finley and Ivy planned the robbery, but he later stated that

he fired into the victim’s car. Codefendant Finley testified and gave a videotaped statement

corroborating Brewer’s version of events that night. Dr. James Cogan, the assistant medical

examiner, reviewed the autopsy results of the victim, which reflected cause of death as a

gunshot wound to the chest.

¶ 24 Based on the strength of the State’s evidence, Brewer has failed to satisfy the first prong

of plain error. Accordingly, we conclude there is no basis for excusing the forfeiture of

Brewer’s issues related to the violation of Illinois Supreme Court Rule 431(b) (eff. May 1,

2007) and the decision in Thompson requires Brewer’s conviction be affirmed on that basis.

¶ 25 B. Limiting Instruction on Videotaped Prior Consistent Statement

¶ 26 Brewer next contends the trial court failed to give a limiting instruction after the State

rehabilitated codefendant Finley by presenting his videotaped prior consistent statement as

substantive evidence. Brewer admits Finley’s videotaped statement was admissible to

rehabilitate him after the defense alleged he had a motive to testify falsely, but argues the

trial judge erred in failing to instruct the jury the video statement could only be considered

with respect to Finley’s believability, not as independent proof of defendant’s guilt. Brewer

notes though defense counsel did not request a limiting instruction, he did object to the

admission of Finley’s videotaped statement and raised the issue in his motion for new trial,

preserving the issue for review. Alternatively, Brewer contends his trial counsel was

ineffective for failing to request a limiting instruction.

¶ 27 The State asserts Brewer forfeited review of this issue or, alternatively, if it is not

forfeited, the trial court properly allowed the publication of the videotaped statement. The

State further argues any error was harmless. The State notes before publication of the

videotaped statement, the defense objected on the ground it would be cumulative, while the

State argued it was being offered to rebut a charge of recent fabrication. Moreover, the State

notes the trial court offered to give the jury a limiting instruction but the defense objected,

and thus, the State contends Brewer’s entire argument is in bad faith.

¶ 28 A witness’s prior consistent statement is admissible only to rebut a charge or inference

he or she was motivated to lie or his or her testimony was of recent fabrication, as long as

the prior consistent statement was made before either the motive arose or the alleged

fabrication was made. People v. Smith, 362 Ill. App. 3d 1062, 1081 (2005).

¶ 29 Defense counsel objected to the videotape of Finley’s statement being played for the jury

on the grounds that it improperly referred to gang membership and because it would be

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cumulative of trial testimony and would bolster that testimony. The trial court indicated it

could only be admitted if it were impeaching, and the State noted it could be admitted to

rebut a recent fabrication that was alleged bydefense counsel on cross-examination. Defense

counsel offered to stipulate that Finley told the same version of events six years ago, to

which both the State and the trial court replied “not the same.” The trial court then indicated

the State could play the video but must stop it before the gang reference. The court would

also give a limiting instruction as to the redacted portions of the statement, but defense

counsel refused the instruction. Further, during the instructions conference, defense counsel

never sought any limiting instruction regarding Finley’s videotaped statement.

¶ 30 We find this issue is forfeited for purposes of review as defense counsel never objected

to the videotaped statement on the basis it was being used as substantive evidence by the

State. Enoch, 122 Ill. 2d at 185-86. It is not reviewable under plain error as the evidence was

not closely balanced nor did the error affect substantive rights or prejudice defendant. We

also find defense counsel was not ineffective for failing to request a limiting instruction as

any error was harmless in light of the overwhelming amount of evidence against Brewer.

Finley testified at trial consistently with the material contained on the tape, and it is unlikely

the jury’s verdict would have been different but for the admission of the videotaped

statement into evidence. See Strickland v. Washington, 466 U.S. 668, 694 (1984) (defendant

must show counsel’s performance fell below objective standard of reasonableness and a

reasonable probability that, but for counsel’s unprofessional errors, result of proceeding

would have been different).

¶ 31 C. Confrontation Clause Rights

¶ 32 Brewer next contends his confrontation clause rights were violated when the trial court

permitted a medical examiner who did not perform the autopsy on JeremyMcEwen to testify

at trial regarding the autopsy report. Brewer did not object to this testimony at trial or include

the issue in his posttrial motion. Therefore, we must determine whether this issue is

reviewable as plain error. Ill. S. Ct. R. 615 (“[a]ny error, defect, irregularity, or variance

which does not affect substantial rights shall be disregarded” unless the appellant

demonstrates plain error). As noted above, the first step of plain error analysis is deciding

whether any error has occurred. People v. Walker, 232 Ill. 2d 113, 124-25 (2009). If there

was no error in the first instance, there can be no plain error. People v. Bannister, 232 Ill. 2d

52, 79 (2008).

¶ 33 Brewer contends Crawford v. Washington, 541 U.S. 36, 53-54 (2004), supports his

argument that his sixth amendment rights were violated when the State was permitted to

introduce into evidence autopsy results on McEwen through the testimony of a medical

examiner who did not perform the autopsy. In Crawford, the United States Supreme Court

held that when a declarant does not appear for cross-examination at a defendant’s trial, the

sixth amendment of the United States Constitution requires the declarant’s testimonial

evidence not be admitted unless the witness is unavailable and the defendant had an

opportunity to cross-examine the witness. Id. at 68. The Court left “for another day any effort

to spell out a comprehensive definition of ‘testimonial.’ ” Id.

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¶ 34 In subsequent opinions, the Court found certain types of forensic evidence to be

testimonial and inadmissible under the standard set forth in Crawford. For instance, in

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), involving charges of distributing and

trafficking of cocaine, the Court held affidavits of analysts at a state laboratory averring that

a substance was cocaine were testimonial statements and “[a]bsent a showing that the

analysts were unavailable to testify at trial and that petitioner had a prior opportunity to

cross-examine them, petitioner was entitled to be confronted with the analysts at trial.”

(Emphasisin original.) (Internal quotation marks omitted.) Id. at 311 (quotingCrawford, 541

U.S. at 50). Similarly, in Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705 (2011),

the Court found a certified blood-alcohol-concentration report prepared “solely for an

‘evidentiary purpose’ ” and made in “aid of a police investigation” was testimonial. Id. at

___, 131 S. Ct. at 2717. Therefore, its admission into evidence required either live testimony

from the analyst who performed the test and certified the report, or a finding that the analyst

who performed the test was unavailable and the defendant had a prior opportunity to crossexamine that analyst. Id. at ___, 131 S. Ct. at 2713. The “surrogate” testimony of another

analyst who did not personally perform or observe the performance of the test was

insufficient to satisfy the requirements of the confrontation clause. Id. at ___, 131 S. Ct. at

2710.

¶ 35 The Court’s divided decision in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221

(2012), was its most recent effort to define “testimonial.” In Williams, defendant was

convicted following a bench trial of, among other offenses, aggravated criminal sexual

assault. Williams, 567 U.S. at ___, 132 S. Ct. at 2227. An expert for the State, who was an

Illinois State Police forensic biologist, testified that a DNA profile produced by Cellmark

Diagnostics Laboratorymatched a profile generated bythe State Police lab using defendant’s

blood sample. Specifically, the State asked DNA expert Sandra Lambatos whetherthere was

“ ‘a computer match generated of the male DNA profile found in semen from the vaginal

swabs of [L.J.] to a male DNA profile that had been identified as having originated from

Sandy Williams.’ ” (Emphasis omitted.) Id. at ___, 132 S. Ct. at 2236. The Cellmark report

itself was not admitted into evidence. Id. at ___, ___, 132 S. Ct. at 2230, 2235. In addition,

the expert did not vouch for the accuracy of the profile generated by Cellmark. Id. at ___,

132 S. Ct. at 2227. The defendant’s main contention was that the confrontation clause was

violated when the expert “referred to the DNA profile provided by Cellmark as having been

produced from semen found on the victim’s vaginal swabs.” Id. at ___, 132 S. Ct. at 2227.

¶ 36 The plurality of the Court, including Chief Justice Roberts, and Justices Alito, Kennedy,

and Breyer, concluded not all forensic reports offered by the State are testimonial statements,

and reports violate the confrontation clause when they are made for the purpose of proving

the guilt of a particular targeted defendant at trial. Id. at ___, 132 S. Ct. at 2243. The forensic

reports in Melendez-Diaz and Bullcoming “ran afoul of the Confrontation Clause because

theywere the equivalent of affidavits made for the purpose of proving the guilt of a particular

criminal defendant at trial.” Id. at ___, 132 S. Ct. at 2243. Conversely, the DNA report in

Williams “plainly was not prepared for the primary purpose of accusing a targeted

individual,” since the defendant “was neither in custody nor under suspicion” when the

vaginal swabs for sent to the outside lab for testing. Id. at ___, 132 S. Ct. at 2243. In

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Williams, the report was not admitted into evidence, but the plurality found even if it had

been, there would have been no confrontation clause violation because “the primary purpose

of the Cellmark report, viewed objectively, was not to accuse petitioner or to create evidence

for use at trial.” Id. at ___, 132 S. Ct. at 2243.

¶ 37 Justice Thomas disagreed with the plurality’s rationale in Williams but concurred in the

judgment because the statements at issue lacked the “ ‘formality and solemnity’ ” to be

testimonial for purpose of the confrontation clause. Id. at ___, 132 S. Ct. at 2255 (Thomas

J., concurring).

¶ 38 In a dissenting opinion, Justice Kagan, joined by Justices Scalia, Ginsburg, and

Sotomayor, found precedent dictated that the test for determining whether a forensic report

is testimonial is whether the primary purpose of an out-of-court statement was to provide

evidence of past events that are potentially relevant to subsequent criminal prosecution,

regardless of whether a particular suspect is targeted. Id. at ___, 132 S. Ct. at 2273 (Kagan,

J., dissenting, joined by Scalia, Ginsburg and Sotomayor, JJ.).

¶ 39 Shortly after the divided opinion in Williams was issued, the Illinois Supreme Court

decided People v. Leach, 2012 IL111534. In Leach, defendant was charged with first degree

murder in the strangling death of his wife. The autopsy report on the victim was admitted

into evidence through the expert testimony of a medical examiner who had not performed

the autopsybut had reviewed the autopsy report in forming her opinion on the cause of death.

Since no limitations were placed on the autopsy report’s admission into evidence, the

supreme court found it was admitted for the truth of the matter asserted. Leach, 2012 IL

111534, ¶ 67. The court concluded the report was admissible, however, under exceptions to

the hearsay rule set forth in the Illinois Rules of Evidence and state statute. Id. ¶ 66.

¶ 40 The court then considered whether admission of the results of the autopsy report violated

the confrontation clause. After summarizing United States Supreme Court decisions on the

confrontation clause though the holding in Williams, the court found that regardless of which

definition of primary purpose is applied, the autopsy report was not testimonial because it

was: (1) not prepared for the primary purpose of accusing a targeted individual or (2) for the

primary purpose of providing evidence in a criminal case. Id. ¶ 54. The court stated, “the

primary purpose of preparing an autopsy report is not to accuse ‘a targeted individual of

engaging in criminal conduct’ (Williams, 567 U.S. at ___, 132 S. Ct. at 2242) or to provide

evidence in a criminal trial (Davis [v. Washington,] 547 U.S. [813,] 822 [(2006)]). An

autopsyreport is prepared in the normal course of operation of the medical examiner’s office,

to determine the cause and manner of death, which, if determined to be homicide, could

result in charges being brought.” Id. ¶ 130. “Unlike a DNA test which might identify a

defendant as the perpetrator of a particular crime, the autopsy finding of homicide did not

directly accuse defendant. Only when the autopsy findings are viewed in light of defendant’s

own statement to the police is he linked to the crime. In short, the autopsy sought to

determine how the victim died, not who was responsible ***.” Id. ¶ 132.

¶ 41 The court acknowledged there is “confusion regardingapplication of primarypurpose test

to reports of forensic testing[, which] may eventually be resolved by the United States

Supreme Court.” Id. ¶ 136. “In the meantime,” the court stated: “[W]hile we are not prepared

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to say that the report of an autopsy conducted by the medical examiner’s office can never be

testimonial in nature, we conclude that under the objective test set out by the plurality in

Williams, under the test adopted in Davis, and under Justice Thomas’s ‘formality and

solemnity’ rule, autopsyreports prepared bya medical examiner’s office in the normal course

of its duties are nontestimonial. Further, an autopsy report prepared in the normal course of

business of a medial examiner’s office is not rendered testimonial merely because the

assistant medical examiner performing the autopsy is aware that police suspect homicide and

that a specific individual might be responsible.” Id. ¶ 136.

¶ 42 The court found even if the trial court erred in admitting the autopsy report, any error was

harmless because if the autopsy report and medical examiner’s testimony were omitted from

evidence, the outcome of the trial would not have been different. Id. ¶ 150. In a dissenting

opinion, Chief Justice Kilbride disagreed with the majority’s reliance on Williams, “a

fractured opinion with no majority support for its rationale.” Id. ¶ 161 (Kilbride, C.J.,

dissenting). He furtherstated the court should have been guided byCrawford v. Washington,

541 U.S. 36 (2004), because Williams is factually distinguishable. Leach, 2012 IL 111534,

¶ 164. He also disagreed with the majority’s harmless error analysis, because it was dicta and

purely advisory. Id. ¶ 170.

¶ 43 Applying the holding in Leach, we find the autopsy report was not testimonial and its

admission into evidence did not implicate Brewer’s confrontation clause rights. The purpose

of the autopsywas to determine how McEwen died, not who was responsible. Nothing in the

autopsy report linked Brewer to the shooting and it is only when the autopsy findings are

viewed in light of Brewer’s own statement to the police and other evidence at trial is there

a connection established between Brewer and the crime. Further, the trial court did not err

in permitting someone other than the medical examiner who performed the autopsy to testify

because as the supreme court stated in Leach, “if the [autopsy] report was properly admitted,

the expert witness’s testimony cannot have violated the confrontation clause even if it had

the effect of offering the report for the truth of the matters asserted therein.” Id. ¶ 57.

Therefore, we find the trial court did not err in permitting the State to present Dr. Cogan to

testify about the results of Dr. Chira’s autopsy report on McEwen. Since there was no error

in the first instance, there can be no plain error. Bannister, 232 Ill. 2d at 79.

¶ 44 Further, even if this court finds the trial court erred in permitting Dr. Cogan to testify, this

was not the type of structural error that would require automatic reversal regardless of

forfeiture or lack or prejudice. People v. Glasper, 234 Ill. 2d 173, 197-98 (2009) (“automatic

reversal is only required where an error is deemed ‘structural,’ i.e., a systemic error which

serves to ‘erode the integrity of the judicial process and undermine the fairness of the

defendant’s trial’ ”). The United States Supreme Court has found infringement of four basic

rights of defendants constitute structural error requiring automatic reversal: the right to

counsel; the right to self-representation; the right to a public trial; and the right to a trial by

jury when an erroneous instruction on reasonable doubt affects that right. United States v.

Gonzalez-Lopez, 548 U.S. 140, 149 (2006). Illinois courts have expanded the list to include

infringement of the right to a jury trial by the denial of a defendant’s request for special

verdict forms where the answers to those forms could affect the defendant’s sentence. People

v. Smith, 233 Ill. 2d 1, 27-28 (2009).

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¶ 45 The alleged error in this case does not fall into those categories. It was not a structural

error and there was no prejudice to Brewer, who failed to explain what advantage he would

have gained bycross-examining the physician who performed the autopsy.In Melendez-Diaz

and Bullcoming, cases relied on by Brewer, the forensic evidence at issue, an affidavit

attesting a substance found in defendant’s possession was cocaine and defendant’s bloodalcohol concentration report respectively, were directly related to proving defendants’ guilt

in the crimes charged. Here, the autopsy report prepared by Dr. Chira merely states the cause

of death, an issue never in doubt. On cross-examination, defense counsel asked Dr. Cogan

whether McEwen was shot at close-range and whetherthe autopsy findings would have been

different if the shooter were left or right handed. Dr. Cogan stated there was no evidence

McEwen was shot at close range and neither he nor Dr. Chira could have an opinion as to

whether the shooter was left- or right-handed. In short, cross-examining Dr. Chira would

have not elicited evidence that could have changed the outcome of the trial, and therefore,

the State’s failure to present him as a witness was not be reversible error.

¶ 46 D. Expert Testimony on Post-Traumatic Stress Disorder

¶ 47 Next, Brewer contends he was denied his right to present a defense where the trial court

barred Dr. Joyce Miller from testifying about his police-related PTSD. Brewer asserts his

defense was that the inculpatory statement he gave to the police was incredible because he

suffered from police-related PTSD when he gave the statement, and the trial court prevented

him from introducing expert witness testimony about his PTSD diagnosis and treatment.

¶ 48 “The admission of the opinion of an expert, like the admission of any evidence, is a

matter within the discretion of the trial court.” People v. Driver, 62 Ill. App. 3d 847, 853

(1978). “Where the trial court’s rulings restrict the right to present a defense or to crossexamine witnesses, our duty on review is to determine whether the trial court’s rulings

constituted an abuse of its discretion.” People v. Jackson, 303 Ill. App. 3d 583, 587 (1999).

¶ 49 Dr. Miller originally testified during the hearing on Brewer’s motion to suppress. She

said she treated Brewer between May and June of 2001, when he was referred to her for a

psychiatric evaluation to determine if a homebound program was still needed from his

school. She initially met with Brewer on May 14, 2001, and learned he had been beaten by

police about 1 1⁄2 months earlier and had been placed in a homebound program for school.

Miller diagnosed Brewer with PTSD resulting from the incident and prescribed Zoloft to

manage his symptoms. She testified Brewer could have a stressful reaction to seeing a police

car or hearing sirens. On cross-examination, Miller said she last saw Brewer on June 4, 2001,

and had no opinion regarding the events surrounding his arrest on June 27, 2001, including

whether he was still taking his medication or whether his statement was freely given.

¶ 50 Before trial, the State filed a motion in limine to preclude Miller’s testimony because it

was irrelevant as she had no opinion as to the voluntariness of Brewer’s statement. Since

neither party could produce transcripts of Miller’s testimony during suppression hearing, the

trial court denied the State’s motion. After trial began, the State renewed its motion once

transcripts were secured. The trial court barred Miller’s testimony, finding it could confuse

the jury and would not shed any light on any issue in the case, because Miller was unable to

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render any opinion or make a projection as to whether Brewer was susceptible to police

pressure to give a statement on the issue of voluntariness.

¶ 51 The trial court has the power and discretion to exclude evidence offered by the defense

in a criminal case on the basis of irrelevancy without infringing on an accused’s

constitutional right to present a defense. People v. Dalzotto, 55 Ill. App. 3d 995, 998 (1977).

See also Chambers v. Mississippi, 410 U.S. 284 (1973); Washington v. Texas, 388 U.S. 14

(1967). “Testimony is relevant if it would, if believed, tend to make any fact in issue more

or less probable than it would be without the testimony.” People v. Makiel, 263 Ill. App. 3d

54, 70 (1994).

¶ 52 We find the trial court did not abuse its discretion in barring Dr. Miller from testifying

at trial. Contrary to Brewer’s assertions, she did not have an opinion as to whether Brewer’s

PTSD affected the voluntariness of his statement to police. She had last seen Brewer several

weeks prior to the shooting and was unaware if he was taking the prescribed medication at

the time of his arrest. Thus, her testimony was irrelevant to the voluntariness of Brewer’s

statement at the time of his arrest and its exclusion did not infringe on his right to present a

defense.

¶ 53 E. Defendant’s Prison Sentence

¶ 54 Brewer next argues his aggregate 80-year sentence is excessive where the trial judge

placed emphasis on a factor inherent in the offense and failed to adequately consider he was

18 years old at the time of the offense, had a minimal criminal background, and had

significant potential for rehabilitation.

¶ 55 In imposing a sentence on a defendant, the trial judge may not consider facts implicit in

the underlying offense for which defendant was convicted. People v. James, 255 Ill. App. 3d

516, 531 (1993). A judgemayconsider the nature and circumstances of the offense, however,

including the nature and extent of each element of the offense as committed bythe defendant.

Id. at 532. “A reviewing court may not alter a defendant’s sentence absent an abuse of

discretion by the trial court.” People v. Alexander, 239 Ill. 2d 205, 212 (2010). A sentence

will be deemed an abuse of discretion where it is “ ‘greatly at variance with the spirit and

purpose of the law, or manifestly disproportionate to the nature of the offense.’ ” Id. (quoting

People v. Stacey, 193 Ill. 2d 203, 210 (2000), citing People v. Fern, 189 Ill. 2d 48, 54

(1999)). “[W]here mitigation evidence is before a court, it is presumed the court considered

that evidence, absent evidence to the contrary.” People v. Lampley, 405 Ill. App. 3d 1, 13

(2010) (citing People v. Canet, 218 Ill. App. 3d 855, 864 (1991)). The sentencing range for

first degree murder is between 20 and 60 years. 730 ILCS 5/5-8-1(a)(1)(a) (West 2008).

¶ 56 During the sentencing hearing, the trial court noted applicable factors in mitigation and

aggravation. During aggravation, the trial court made the following statements:

“Factors in aggravation, the defendant’s conduct did cause or threaten serious harm, the

ultimate serious harm, murder. The defendant received compensation for committing the

offense, no, but this was a robbery that turned into a murder, felony murder. The

defendant has a history of prior delinquency or criminal activity. Although minimal, yes,

he does have a history of prior delinquency, not a stranger to the criminal justice system.

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Four is not applicable. Five is not applicable. Six is not applicable. Seven is absolutely

applicable. The sentence is necessary to deter others from committing the same crime.

Eight and nine are not applicable. And I believe the other factors in aggravation that I’ve

looked through, 10, 11, 12, 13, 14, 15, on through 20 and 21 are not applicable.”

¶ 57 The record does not indicate the trial court emphasized a factor inherent in the offense

during sentencing. Contrary to Brewer’s assertions, the fact his conduct threatened or caused

serious harm is not a factor inherent in the crime itself but is a proper aggravating factor to

be considered during sentencing even in cases where serious bodily harm is implicit in the

offense. See People v. Salvidar, 113 Ill. 2d 256, 269 (1986); People v. Solano, 221 Ill. App.

3d 272, 274 (1991); People v. Spencer, 229 Ill. App. 3d 1098, 1102 (1992). Moreover,

Brewer’s sentence was well within the statutorysentencing range for first degreemurder, and

the existence of mitigating factors does not mandate imposition of the minimum sentence nor

preclude imposition of the maximum sentence. People v. Flores, 404 Ill. App. 3d 155, 158

(2010). We conclude the trial court did not abuse its discretion in sentencing Brewer to a 50-

year prison term for first degree murder.

¶ 58 Brewer also received a consecutive 30-year prison term for personally discharging a

firearm that caused the death of another. Section 5-8-1(a)(1)(d)(iii) of the Unified Code of

Corrections states: “if, during the commission of the offense, the person personally

discharged a firearm that proximately caused great bodily harm, permanent disability,

permanent disfigurement, or death to another person, 25 years or up to a term of natural life

shall be added to the term of imprisonment imposed by the court.” 730 ILCS 5/5-8-

1(a)(1)(d)(iii) (West 2006). Brewer’s additional 30-year prison term was well within the

statutory sentencing range. The sentence was not an abuse of discretion.

¶ 59 F. Mittimus

¶ 60 Lastly, Brewer contends the mittimus should be amended to reflect one conviction for

first degree murder rather than two and to further state Brewer was sentenced to a

consecutive 30-year prison term for personallydischarging a firearm that proximatelycaused

the death of the victim. See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2008). The State concedes

the mittimus should be corrected.

¶ 61 This court has the authority to directly order the clerk of the circuit court to make the

necessary corrections to Brewer’s sentencing order. People v. McCray, 273 Ill. App. 3d 396,

403 (1995). Therefore, we direct the clerk of the circuit court to correct the mittimus.

¶ 62 III. CONCLUSION

¶ 63 For the foregoing reasons, we affirm the defendant’s conviction and sentence, and order

the mittimus to be corrected.

¶ 64 Affirmed; mittimus corrected.

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