## 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 . Brewer , 2013 IL App (1st) 072821

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. TYRONE B REWER , Def endant- Appellant.

District & N o. First District, Third Division Docke t No. 1-07-2821

Filed Marc h 29, 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

. ) D e f e n d ant’s convictions for first degree murder and discharg ing a firea r m in a shooting death wer e upheld over his content i o n s , inter alia
, that potential jurors wer e not asked whether they acc epted the Zehr principles, that the medical examiner who perf ormed the autopsy did not testify
, that his sentenc e was excessive, and that the mitti mus should be corr ecte d to ref lect only one murder, since the violation of Rule 431(b) was not plain

err or, the State’s failure to prese nt t h e ex ami ner who perf ormed the autopsy was not reve rsible err or, and his sentenc e was n o t an abuse of discretion, but a c orre ction of the mittimus was ordere d.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 0 8 -C R -13128; the Hon. J ames B . L inn, J udg e, pre siding.

J udg ment Affir med; mitti mus corre cted.Counsel on

Appea l Rache l Moran, of State Appellate Def ender ’s Offic e, of Chicag o, for appellant.

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

. Spellberg and J on Walters, Assistant St ate’ s Attorney s, of counse l), for the People.

Panel J USTI CE HYMAN de livered the judgme nt of the cour t, with opinion.
J ustices L avin and Sterba concur red in the judgment and opinion.

OP INION

¶ 1 A jury found Ty rone Br ewe r, the defe ndant, guilty of first degree murder and per sonally discharg ing a firea

rm in the shooting death of J ere my McEwe n. Br ewe r was sentenc ed to 50
y ear s’ imprisonment on the first degree murder conviction and a consec utive 30 y ear s for
persona lly discharg ing a firea rm that cause d M cE we n ’s death. Br ewe r appea led his conviction and sentenc e raising the following six issues for revie w: (1) the trial court violated I l l i n o i s S upreme Court Rule 431(b) (ef f. May 1, 2007) by failing to ask potential jurors during voir direwhether they understood and ac cepte d the principles se t forth in People v

. Zehr
, 103 I ll. 2d 472 (1984); (2) the trial court err ed in f ailing to g ive a limit ing instruction afte r the State reha

bilitated codef

endant Finley by prese nting his videotaped prior consistent
statement as substantive evidenc e; (3) his six th amendment rig ht to confr ont and crossexamine w itnesses was violated beca use the medical examiner who perf ormed the autopsy did not testify ; (4) his right to present a de fense was violated be cause the trial cour t barre d his expert witness from testifying about his police related post-traumatic stress disorder (PTSD), wh i ch was rele vant in assessing the cre dibilit y of his statement; (5) his 80-year sentenc e was excessive; and (6) the mitti mus should be corr ecte d to ref lect only one murder conviction. ¶ 2 The appellate court ad d re s s ed o n l y o n e i s s u e, reversing Br ewe r’s conviction and

rema nding f or a ne w trial af

ter findingthe trial cour

t violated I llinois Supreme Court Rule 431(b) (ef

f. May 1, 2007), by failing to ask potential jur o rs du ri n g voir dire whether they

u n d er s tood and acce pted t he principles set forth in People v. Zehr
, 103 I ll. 2d 472 (1 9 8 4 ). People v. Brewer
, No. 1-07-2821 (2010) (unpublished order under Supreme Court Rule 23). Our supre me cour

t denied the State’ s petition f or leave to a

ppeal but entere d a super

visory order directing the appellate court to vacate and rec onsider it s judgme nt in light of People

v. Thompson
, 238 I ll. 2d 598 (2010) (trial court’s violation of amende d Rule 431(b) was not structura l err or requiring automatic reve rsal nor g rounds for reve rsal under second prong of plain err or analy sis absent a showing err or aff ecte d fairne ss of trial or i n t egrity of judicial

*J ust ic e Sal one ori ginal ly sat on the pan el of thi s app eal and par ti ci pat ed in it s dis pos it ion

. J ust ic e Sa lon e ha s r et ir ed; th er ef ore , J ust ic e Hym an s erves in hi s s te ad. -2-proce ss). People v. Brewer
, No

. 110429 (I ll. J an. 26, 2011) (super visory order). We now addre ss the Rule 431(b) issue in light of Thompson as well as the other five issues raised by the appe al. For

the followingrea sons, we af firm.

¶ 3 I . Fa ctual B ackground ¶ 4 J ere my McEwe n was fata lly shot on J une 26, 2001, at about 10:15 p.m., while sitti ngin his car near 8800 South Cly de Avenue in Chicag o. Kimberly Smit h, a friend of McEwe n’s, was in the c ar w ith him when the shooting oc curr ed. She and McEwen ha d agree d to meet
at a g as station on 87th Street befor e heading downtown fo r dinner. Smit h arr ived first. McEwe n then pulled up to her car and told her to follow him. When they g ot to Cly de Avenue, Smit h parke d in front of McEwe n. She g ot out of her car and saw two men approa ching

. She quickl y go t into McEwe n’s car

. McEwe n was holding money in his left hand. Smit h put her hand over McEwe n’s hand and pushed it down, beca use she did not want the two men to see the money

. Whil e McEwe n and S m i t h we re still parke d, the two men approa ched the car

. One man was wea ring 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 car s

awa y and looking around. The man in the black hoodie approa ched the driver’ s side window, pointed a gun at McEwe n and said, “this is a stickup, g ive me your money .” McEwe n did not say an y th i ng but looked at the gunman and turned down the volume on the car radio. The

man in the black hoodie shot the gun o n ce i n t h e ai r. The man in the red shirt was now standing next to Smit h’s door, preve nting her from g etting out. The shooter ag ain demande d
money

. McEwe n started to drive awa y , and the shooter shot into the car

. McEwe n continued driving
, hit a car , drove onto a lawn, and came to a stop when he cra shed into a fenc e. After he was shot, Smith hear d McEwe n say “T-Ma n.” S mith later identified the m an in t h e re d shirt in a lineup as the lookout. ¶ 5 Police office rs investiga ti n g th e s h o o ti n g le a

r n e d B r e w er went by the nickname “ T-Man.” The morning afte r the shooting, they picked up Br ewe r at his g irlfriend’ s house and took him
to the police station, wher e he was place d in an interrog ati o n ro o m and advised of his Miran da rig hts. During initial questioning, Br ewe r implicated himself and two friends, Rashaune Finley and Terr ell Ivy , in the murder but said Finley was the shooter. When the police questioned Br ewe r ag ain, later that day
, he identified himself as the shooter and g ave a handwritten statement to forme r Assistant State’s Attorney Patrick B rosnan. ¶ 6 Acc ording to Br ewe r’s statement, which was published to the jury
, on the morning of the shooting he decide d he was g oing to rob someone. At around 9:30 p.m., Br ewe r, Finley
, and Ivy wer e park ed at a gas station when they saw McEwe n drive up in a white Oldsmobile Cutlass with expensive-looking tire rims. T he men agree d Br ewe r would rob McEwe n and Finley would be the lookout. Ivy would drive the g etawa

y car if Br ewe r and Finley did not steal McEwe n’s car

. The men followed McEwe n in their car as he drove a few blocks befor e stopping to pick up a fema le friend. Whil e McEwe n and h i s friend wer e sitti ng in the car , Br ewe r and Finley approa ched on foot. Finley walked past McEwe n’s car and looked around
to make sure no one was watching

. Br ewe r, who had a gun underne ath his hooded sweatshirt,

wa lked up to the open driver’ s side window. He pointed the gun at McEwe n , d em an d ed

-3-money , and told McEwe n to g et out of the car

. When McEwe n did not respond, Br ewe r

beca me angry and fired the gun in the air. He pointed the gun at McEwe n ag ain. As McEwe n put the car into drive and beg an to pull awa y , Br ewe r fi re d at McEwe n, hitting him in the chest. Br ewe r saw McEwe n drive off and cra sh into a yard around the corne r. Br ewe r put the
gun under his hoodie, and he and Finley walked awa y

. When Br ewe r hear d someone calling “T-Ma n,” he and Finley beg an to r un. A few people chase d them but they split up and both
g ot away . Whil e B rew er w as running , he thre w the gun into a yard. ¶ 7 Codefenda

nt Rashaune Finley
, who testified af t er en t er i n g a plea agree ment with the State, corr oborate d Br ewe r’s version of events. Finley said he knew Terr ell Ivy and Br ewe r from school, and Br ewe r went by the nickname “T-Ma n.” On the afte rnoon of J une 26, 2001, Br ewe r told Finley he sold marijuana to a man who paid with counter feit money and he was g oing to find the man and g et his money

. Br ewe r offe red Finley and Ivy $500 eac h to act as lookouts and to beat the man up if he did not pay

. L ater that evening
, Br ewe r, Finley
, and Ivy

wer e parke d at a g as station when they saw McEwe n drive up in a white Oldsmobile Cutlass with expensive tire rims. Br ewe r t o l d Finley that McEwe n was the man who g ave him
counter feit m oney

. The men f ollowed McEwe n as he dr ove out of the g as st ation and then stopped a few blocks aw ay at 8 9 t h S tree t and Cly de Avenue to pick up a fema le friend. Finley saw Br ewe r had a .45-ca liber or 9-millim eter gun in his lap, which he put in the front pocket of his hooded sweatshirt. Br ewe r and Finley approa ched the car from the back. Finley
acte d as a lookout. Br ewe r went to the driver’ s side window, said something to McEwe n, and then fired a shot i n the air. When McEwe n beg an to drive off, Br ewe r fired into the car at McEwe n. As Finley and Br ewe r ran awa y , Br ewe r took of

f his hoodie, wrappe d the gun in it, and threw it in a yard. Finley was arre s ted on J une 27, 2011, and g ave a videotaped statement to the police that was consistent with his trial testimony

. ¶ 8 The shooting occur red n ea r J esse Owens Park, and sever al witnesses who wer e in the park testified at trial. J oseph Fields said he hear d a “pop” that sounded like a firec rac ker then

saw McEwe n’s car drive off befor e he hear d a cra shing sound. As Fields walked toward 88th Street, he s aw two men, one wea ring a red shirt and the other wea ring a hoodie. Antwan Sneed testified he also hear d a loud pop, then saw M cE wen’s car speeding down Cly de Avenue befor e it lost control near 88th Street. Sneed ran toward the car and “not iced two dudes in hoodies walking into the dark.” Sneed said Br ewe r, whom he knew as “T-Ma n,”

was wea ring a black hoodie. Sneed called out “T-Ma n” sever al times, but Br ewe r picked up his pa ce and ran awa

y

. Sneed later identified Br ewe r and Finley in a lineup as the two men he sawleavingthe sce ne of the shooting. ¶ 9 Roy Fe rguson, who was s i t t i n g i n h i s ca r n ear the park on the night of the shooting, testified for Br ewe r. Fe rguson said he had known Br ewe r for almost 10 y ear s and also knew Rashaune F inley . Fe rguson identified Finley as t he shoot er and said he did notsee B rew er that night. Fer guson said Finley walked up to a white car , put a hood on, shottwo or three times into t he ca

r, and r an off

. ¶ 10 The autopsy was perf ormed by Dr. Thamrong Chira, who was no longe r employ ed with the Cook County medical ex am i n er ’s office at the time of trial. Dr. J oseph Coga n, an assistant medical examiner with the Cook County medical exa m i n er’s office
, testified

conce rning Dr. C h i ra ’s autopsy repor t. The autopsy reve aled McEwe n died from a single

-4-gunshot that enter ed the left side of his chest and exit ed on the rig ht side of his abdomen. The

bullet pierc ed McEwe n’s peric ardia l sac and rig ht ventricle and lace rate d his diaphra g m, bowel, and liver . McEwe n’s death was cla ssified as a homicide

. ¶ 11 On cross-e x amination, Dr. Coga n s aid the autopsy repor

t and photogr aphs showed no evidenc e of close-r ang e shooting, such as gunshot residue. He said, howeve r, evidenc e could be blocked by a victim’s clothing and would not be prese nt if the shooter was more than 18 inches from the victim. When asked if the evidenc e could be aff ecte d by whether the shooter held the gun in his rig ht or left hand, Dr. Coga n stated, “I don’t rea lly g et into that. I ’m sure Dr. Chira doesn’t either. The person could be shot w ith e ither the rig ht hand or left hand. It doesn’t make too much differ ence

. It depends on the police investigation. I s the direc tion of the gunshot wound consistent with evidenc e or history and things like that. It’s not something Icould deter

mine.” ¶ 12 Afte r cl o s i n g ar gu m en t s , th e j ury found Br ewe r guilty of first degree murder a nd
persona lly discharg ing a firearm that proxi m at el y cause d McEwe n’s death. Br ewe r filed a motion for a new trial, which was denied. The court sen t en ce d Br ewe r to 50 y ear s’ imprisonment for first degree murder and an additional consec utive 30 y ear s’ imprisonment for pe rsonally

discharg ing a

firea rm. A motion to reconsider the sentenc e wa s denied.

¶ 13 I I . Analy sis ¶ 14 A. Rule 431(b) ¶ 15 Br ewe r first contends rever sal is require d beca use t he tr i al co u rt failed to comply with I llinois Supreme Court Rule 431(b) by failing to ask potential jurors during voir dire whether they understood and ac ce p t ed t h e principles set forth in People v. Zehr
, 103 I ll. 2d 472 (1984). Br ewe r does not contend the err or resulted in a biased jury
, but rathe r, maintains the closene ss of the evidenc e re quires a f inding of plain err or under the first prong of the plain

err or analy sis. He asser

ts Thompson only applies to pla in e rror under the second prong and thus review of

the Zehr violation is notforf

eited for purposes of a

ppeal. 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 fundame ntal rig ht or constitutional protec tion, but only involves a violation of th[ e] court’s rules.” Thompson
, 238 I ll. 2d at 614-15. Despite its amendment to the rule, the court found it could not conclude Rule 431(b) questioning was indispensable to the selec tion of an impartial ju ry

. Id

. at 615. The court also reje cted defe ndant’s reque st for plain err or revie w under the second prong , finding defe ndant failed
to establish the trial court’s violation of Rule 431(b) resulted in a biased jury

. Id

. In addition, the court h el d t h at defe ndant had not met his burden of showing the err or aff ecte d the fairne ss of the trial or challe n ged t h e integ rity of the judicial proce ss, as the prospec tive jurors rec eived some of the require d Rule 431(b) questioning and the venire was admonished and instructed on Rule 431(b) principles. Id . at 611. ¶ 17 Br ewe r argues the evidenc e is c losely balanc ed. He notes during deliberations, the jury
sent out two notes containing five questions. Additionally
, he contends there was no phy sical evidenc e tying him to the crime and his conviction turned on sever al conflicting a ccounts. First, defe nse witness Roy Fe rguson, who knew both Br ewe r and codef endant Rashaune

-5-Finley
, testified defe ndant was not prese nt. Fur ther, Br ewe r notes Kimberly Smit h, who was in the car with the victim at the time o f t h e s h o o t i n g, identified Finley as the shooter in a lineup wher e both defe ndant and codef endant wer e prese nt. Additionally
, Br ewe r argues codef endant Finley ’s identification of him as the shooter i s s u s p ec t beca use his testimony

was gi v en i n exchang e for a lower sentenc e in his own case

. Finally
, Br ewe r argues his inculpatory statement is unreliable beca use he g ave it while in an unmedi ca t ed an d posttraumatic state . Br ewe r asse rts all these fa ctors esta blish the closeness of the evidenc e. ¶ 18 Where a defe ndant fails to o b j ec t t o an error at trial and include the error in a posttrial motion he or she forf

eits ordinary appellate revie w of that err or. People v. Johnson
, 238 I ll. 2d 478, 484 (2010) (citing People v. Enoch
, 122 I ll. 2d 176, 186 (1988) ). C onsequently
, Br ewe r forf

eited, or proce durally defa ulted, his challeng e to the Zehr violation by failing to object and r aise his claim in a posttrial motion. ¶ 19 Under I llinois ’s plain err or d o ct ri ne, a revie wing court may consider a forf eited cla im when: “ ‘( 1) a c lear

or obvious err or occ urre d and the evidenc e 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 clea r or obvio u s er ro r occur

red and that err or is so

s er i o u s that it aff

ecte d the fairness of the defendant’s trial and challeng ed the integ rit y of the judicial proc ess, re g ardle ss of t he closeness of t he evide nce.’ ” Johnson , 238 I ll. 2d at 484 (quot i n g P eo

p le v. Piatkowski
, 225 I ll. 2d 551, 565 (2007), citing People v. Herron , 215 I ll. 2d 167, 186-87 (2005)). ¶ 20 T h e d o ct ri n e i s i n tended to ensure a defe ndant rec eives a fair trial, but it does n o t 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 s aving s clause , it is construed as a na rrow a nd limit ed exception to the ty pical forf eiture r ule applica

ble to unprese rved c laims. Id

. ¶ 21 We ty

pically undertake plain err or analy sis by first deter mining whether err or occ urre d
at all befor e proce eding to c onsider whether either prong of the doctrine has been satisfied. People v . Sargent , 239 I ll. 2d 166, 189-90 (2010). The burden of persua sion rests wit h the defe ndant under both prong s of plain err or analy sis. Id

. at 190. But, the ultimate question of whether a forf

eited claim is revie wable as plain err or is a question of law that is revie wed de

novo

. Johnson , 238 I ll. 2d at 485. ¶ 22 Under the first prong of plain er ro r, t h e d ef en d ant must show the evidenc e was “ so closely balanc ed the err or alone threatened to tip the scale s of justice ag ainst the defe ndant,
reg ardle ss of the seriousness of the err or.” Piatkowski
, 225 I ll. 2d at 565. The question of whether the evidenc e is closely balanc ed is distinct from the challeng e of the sufficie ncy of the evidenc e. Id . at 566. ¶ 23 We reje ct Br ewe r’s char acte rization of the evidenc e as closely balanc ed for the purpose of plain err or analy s i s; to the contra ry , in our view, the streng th of the evidenc e is

o v e r wh e lm ing

. First, there wer e sever al witnesses to the shooting, including Ki mb e rly Sm it h
, who was in the car with McEwe n when he was shot. Smit h provided a phy sical description of the perpe trators and testified she hear d McEwe n say “T-Ma n” afte r he was shot. Smit h later identified the man in the red shirt in a lineup as the lookout. J oseph Fields and Antwan

-6-Sneed wer e in a park near the shooting. Both men hear d a loud “pop” that night, and then

saw the victim’s car speeding down the street befor e it cra shed. Fields saw two men near by
, one in a red shirt and one wea ring a black hoodie. Sneed also saw t wo m en i n h o o d ies walking awa

y from the scene

. Sneed identified Br ewe r, whom he knew as “T-Ma n,” as one of the men and said that when he called afte r him, Br ewe r ran awa y

. For mer Assistant State’s Attorney Br osnan testified he took Br ewe r’s inculpatory handwr itten statement on J une 28, 2001, which was published to the jury

. Detec tive Patrick Golden testified when Br ewe r was

arr ested, he implicated himse lf a n d c o d e f e n d ants in the murder. Detec tive Russell Sutherland interviewe d Br ewe r, who said that Finley and Ivy planned the robber y , but he later stated that he fired into the victim’s car

. Codefenda nt Finley testified and g ave a videotaped statement

corr oborating Br ewe r’s version of events that night. Dr. J ames Coga n, the assistant medical examiner, revie wed the autopsy results of the victim, which ref lected cause of death as a gunshot wound to the chest. ¶ 24 Ba sed on the strength of the State’s evidenc e, Br ewe r has failed to satisfy the first prong of plain err or. Acc ording ly
, we conclude there is no basis for exc u s i n g t h e forf eiture of Br ewe r’s issues related to the violation of I llinois Supreme Court Rule 431(b) ( eff . May 1, 2007) and the decision in Thompson require s Br ewe r’s conviction be aff irmed on that basis.

¶ 25 B. L imiti ngInstruction on Videotape d Prior Consist ent Statement ¶ 26 Br ewe r nex t contends the trial court failed t o g ive a limit ing instruction afte r t h e S t at e reha bilitated codef

endant Finley by prese nting his vide otaped prior consistent statement as substantive evidence. Br ewe r admits Finley ’s videotaped statement was admissible to reha bil i t at e h i m af

ter the defe nse alleg ed he had a motive to testify falsely
, but argues the trial judg e er

red in fa iling to instruct the jury the video statement could only be conside red with respe ct to Finley ’s believability
, not as independe nt proof of defe ndant’s guilt. Br ewe r notes though defe nse counsel did not reque st a limit ing instruction, he did object to the admission of Finley ’s videotaped statement and raised the issue in his motion for new trial,
prese rving the issue for review

. Al ternatively
, Br ewe r contends his trial counsel was ineffe ctive for

failingto reque st a limit ing instruc tion. ¶ 27 T h e S t at e as s er ts Br ewe r forf eited revie w of this issue or, alternatively
, if it i s n o t forf eited
, the t rial court proper ly allowed the publication of t he videotaped s tatement. The State further argues any err or was harm l es s

. The State notes befor e publication of the videotaped statement, the defe nse objected on the ground it would be cumulative, while the State argued it was being offe red to rebut a charg e of rec ent fabr ication. Moreove r, the State notes the trial cour

t offer ed to g ive the jury a li miting i nstruction but the defe nse objec ted, and thus, the State conte nds Br ewe r’s e ntire ar gument is in bad faith. ¶ 28 A witness’s prior consistent statement is a dmissibl e only to r ebut a charg e or infer ence he or she was motivated to lie o r h is or her testimony was of rec ent fabrication, as long as the prior consi stent statement was made befor e either the motive arose or the alleg ed fabr ication was ma de. People v . Smith , 362 I ll. App. 3d 1062, 1081 (2005). ¶ 29 Def

ense counsel objected to the videotape of Finley ’s statement being played for the jury

on the g rounds that it improperly ref err ed to g ang m em b er s h i p and beca use it would be

-7-cumulative of trial testimony an d wo uld bolster t hat t estimony

. The trial court indi cate d it

could only be admitted i f i t wer e impeaching
, and the State noted it could be admitted to rebut a rec ent fabrication that was alleg ed by defe nse counsel on cross-e x amination. Def ense counsel offe red to stipulate that Finley told the same versi o n o f events six year s ag o, to which both the State and the trial court replied “not the same.” The trial court then indicated the S tate could play the v i d eo b u t must stop it befor e the g ang ref ere nce. The court would also g ive a limit ing instruction as to the reda cted p o rt i o n s o f the statement, but defe nse counsel ref

used the instruction. Fur

ther, during the instructions confe renc e, defe nse counsel

never soug ht any

limit ing instruc tion reg ardingFinley ’s videotape d statement. ¶ 30 We find this issue is forf eited for purposes of revie w as defe nse counsel never objected
to the videotaped statement on the basi s it was being used as substantive evidenc e by the State. Enoch
, 122 I ll. 2d at 185-86. It is not revie wable under plain err or as the evidenc e was not closely balanc ed nor did th e erro r affect substantive rig hts or prejudice defenda nt. We also find defe nse counsel was not ineffe ctive for failingto reque st a limit ing instruc tion as
any err or was harmless in light of the overwhelming amount of evidenc e ag ainst Br ewe r. Finley testified at trial consistently with the materia l contained on the tape, and it is unlikely the jury ’s verdic t would have been differ ent but for the admis s ion of the videotaped
statement into evidenc e. See Strickland v. W ashington
, 466 U.S. 668, 694 (1984) (def endant

mu st show counsel’s perf ormanc e fell below objective standard of rea sonablene ss and a

rea sonable probability that, but for counsel’s unprofe ssional err ors, result of proce eding would have be en diffe rent).

¶ 31 C. Confrontation Clause Rights ¶ 32 Br ewe r next contends his confr ontation clause rig hts w ere violated when the trial court permitted a medical examiner who did not perf orm the autopsy on J ere my McEwe n to testify
at trial reg arding the autopsy repor t. Br ewe r did not object to this testimony at trial or include the issue in his posttrial motion. There fore
, we must deter mine whether this issue is revie wable as plain err or. I ll. S. Ct. R. 615 (“[a]ny err or, defe ct, irregularity
, o r v ar i ance which does no t af

fe ct substantial rights shall be disreg arde d” unless the appellant d em o n s t ra tes plain err or). As noted above, the first step of pl ain error analy sis is decid i n g whether an y err or has occur red. People v. W

alker
, 232 I ll. 2d 113, 124-25 (2009). I f there

was no err or in the first instance, there can be no plain err or. People v. Bannister
, 232 I ll. 2d 52, 79 (2008). ¶ 33 Br ewe r contends Crawf ord v. W a s h i n g t o n , 541 U.S. 36, 53-54 (2004), supports his
argument that his six th amendment rig hts wer e vi o l at ed when the State was permitted to introduce into evidenc e autopsy results on McEw en t h ro ug h the testimony of a medical examiner who did not perf orm the autopsy

. In Crawf ord
, the United States Supreme Court held that when a decla

rant does not a

ppear for cross-e x amination at a defe ndant’s trial, the six t h amendment of the United States Constitution require s the decla rant’s testimonial evidenc e n o t be admitted unless the witness is unavailable and the defe ndant had an opportunity to cross-e x amine the witness. Id

. at 68. The Court left “for another day any eff ort to spell out a comprehe nsive definition of ‘testimonial.’ ” Id

.

-8-¶ 34 I n s ub s eq u en t o p i n i o n s , t h e C o urt found cer tain ty pes of fore nsic evidenc e to b e testimonial and inadmissible under the standard set forth in C r a w f o rd

. For instance, in Mele ndez-Diaz v. Massachusetts
, 557 U.S. 305 (2009), involving charg es of distributing and traff icking of coca ine, the Court held aff idavits of analy sts at a state laboratory aver ring that

a substance was coca ine wer e testimonial statements an d “[a]bsent a showing that the analy sts wer e unavailable to testify at trial and that petitioner had a prior opportunity to

cross-e x amine them, petitioner was entitled to be confr onted with the analy sts at trial.” (Em p h a s is in orig inal.) (Interna l quotation marks omitted.) Id. at 311 (quoting Crawf ord
, 541 U.S. at 50). Simi larly
, in Bullcoming v. New Mex ico
, 564 U.S. ___, 131 S. Ct. 2705 (2011), the Court found a cer

tified blood-alcohol-c oncentr ation repor t prepa red “solel y for an ‘evide ntiary purpose’ ” and made in “aid of a p o l i ce i nvestig ation” was testimonial. Id. at

___, 131 S. Ct. at 2717. There fore
, its admission into evidenc e require d either live testimony from the analy st who perf ormed the test and cer

tified the repor

t, or a finding that the analy st who perf ormed the test was unavailable and the defe ndant had a prior opportunity to crossexamine t h at an al y st. Id. at ___, 131 S. Ct. at 2713. The “surr og ate” testimony of another analy st who did not persona lly perf orm or ob s er ve the perf ormanc e of the test was insufficient to satisfy the require ments of the conf rontation clause

. Id. at ___, 131 S. Ct. at 2710. ¶ 35 T h e C o u rt ’s d i v ided decision in W illiams v. Illinois
, 567 U.S. ___, 132 S. Ct. 22 2 1 (2012), was its most rec ent eff ort to define “testimonial.” In W illiams
, defe n dant was convicted following a b en ch t ri al of, among other offe nses, ag g ravated criminal sexual assault. W

illiams , 567 U.S. at ___, 132 S. Ct . at 2227. An expert for the State, who wa s an I llinois State Police fore ns i c b i o l o gist, testified that a DNA profile produce d by Cellmark Diagnostics L aboratory matched a profile g ener ated by the State Police lab using defe ndant’s blood sample. Specifica lly
, the State asked DNA expert Sandra L ambatos whether there was “ ‘a computer match g ener ated of the male DNA profile found in s em en fr o m the vag inal swabs of [L .J .] to a m al e DNA profile that had been identified as having orig inated from Sandy Wil liams.’ ” (Emphasis omitted.) Id. at ___, 132 S. Ct. at 2236. The Cellmark repor t itself was not admitted into e vidence

. Id

. at ___, ___, 132 S. Ct. at 2230, 2235. In addition, the expert did not vouch for the accuracy of the profile g ener ated by Cellmark. Id

. at ___, 132 S. Ct . at 2227. The defe ndant’s main contention was that the confr ontation c lause was violated when the expert “re fer red to the DNA profile provided by Cellmark as having been produce d from semen found on the victim’s va g inal swabs.” Id

. at ___, 132 S. Ct . at 2227. ¶ 36 The plurality of the Court, including Chief J ustice Roberts, and J ustices Alito, Kennedy
, and Br eyer, conclude d not all fore nsic repor ts offe red by the State are testimonial statements, and repor ts violate the confr ontation clause when they are made for the purpose of proving the guilt of a particula

r targ eted defe ndant at trial. Id. at ___, 132 S. Ct. at 2243. The fore nsic
repor ts in Mele ndez-Diaz and Bullcoming “ra n afoul of the Confrontation Cl au s e b ec ause they wer e the equivalent of aff idavits made for the purpose of proving the guilt of a particula r criminal defe ndant at trial.” Id. at ___, 132 S. Ct. at 2 2 4 3

. Conversely
, the DNA repor t in W illiams “plainly was not prepa red for the p ri m ar y p urpose of acc using a targ eted individual,” since the defe ndan t “wa s neither in custody nor under suspicion” when the
vag inal swabs for sent to the outside lab for testing. Id. at ___, 132 S. Ct. at 2243. In

-9-W

illiams
, the repor

t was not admitted into eviden ce , but the plurality found even if it had been, there would have been no confr ontation clause violation beca use “the primary purpose of the Cellmark repor

t, viewed objectively
, was not to acc use petitioner or to cre ate evidenc e for use at trial.” Id. at ___, 132 S. Ct. at 2243. ¶ 37 J ustice Thomas disag ree d with the plurality ’s rationale in W illiams but concur

red in the judgme nt beca

use the statements at issue lacke d the “ ‘for mality and solemnity ’ ” to be testimonial for purpose of the conf rontation clause

. Id. at ___, 132 S. Ct. at 2255 (Thomas J ., concur ring ). ¶ 38 In a dissenting o p i n i o n , J u s t i ce Ka gan , j o i n ed by J ustices Scalia, Ginsburg , and Sotomay or, found prec edent dictated that the test for deter mining whether a fore nsic repor t is testimonial is whether the primary purpose of an out-of-c ourt s t atement was to provide evid en ce o f past events that are potentially rele vant to subsequent criminal prosec ution,
reg ardle ss of whether a particula r suspect is targ eted. Id. at ___, 132 S. Ct. at 2273 (Ka g an, J ., dissenting, joined by

Scalia, Ginsburgand Sotomayor, JJ .). ¶ 39 Shortly afte r the divided opinion in W ill i a ms wa s i ssued, the I llinois Supreme Court decide d People v. Leach
, 2012 I L 111534. In Leach
, defe ndant was charg ed with first degree murder in the strang ling death of his wife. The autopsy repor t on the victim was ad m i t t ed into evidenc e through the expert testimony of a medical ex am i n er who had not perf ormed the autopsy but had revie wed the autopsy repor t in forming her opinion on the cause of death. Since no limit ations wer e place d on the autopsy repor t’s admission into evidenc e, the
supreme court found it was admitted for the truth of the matter as s er t ed. Leach
, 2012 I L 111534, ¶ 67. The court conclude d the repor t was admissible, howeve r, under exceptions to the hea rsay rule set f orth in the I llinois Rules of Evidence and state statute. Id. ¶ 66. ¶ 40 The court then considere d whether admission of the results of the autopsy repor t violated the confr ontation clause

. After summarizing United States Supreme Court decisions on the confr ontation clause though the holding in W illiams
, the court found that reg ardle ss of which definition of primary purp o s e i s applied, the autopsy repor t was not testimonial beca use i t

was: (1) not prepa

red for the primary purpose of acc using a targ eted individual or (2) for the primary purpose of providing evidenc e in a cr i m i n al ca s e. Id. ¶ 54. The court stated, “the primary purpose of prepa ring an autops y re p o rt is not to acc use ‘a targ eted individual of
eng ag ing in criminal conduct’ ( W illiams
, 567 U.S. at ___, 132 S. Ct. at 2242) or to provide evidenc e in a cr i m i n al t rial ( Davis [ v. W

ashington ,] 547 U.S. [813,] 822 [(2006)]). An autopsy repor

t is prepa red in the normal course of operation of the medical examiner’s office
, t o deter mine the cause and manner of death, which, if deter mined to be homicide, co u l d result in char g es being brought.” Id

. ¶ 130. “Unlike a DNA test which might identify a d ef en d ant as the perpetrator of a particula r crime, the autopsy finding of hom icide di d n o t direc tly acc use defe ndant. Only when the autopsy finding s are viewed in light of defe ndant’s

own statement to the police is he l i nked to the crime. In short, the autopsy soug ht to deter mine how the victim died, not who was r esponsible ***.” Id . ¶ 132. ¶ 41 The court acknow ledg ed there is “conf usion reg ardi n g a

p p li c a ti o n o f p rim a

r y p u r p o s e test to repor ts of fore nsic testing[, which] may eventua lly be resolved by the United States Supreme Court.” Id

. ¶ 136. “I n the meantime,” the court stated: “[W ]hi le we are not prepa red

-10-to say that the repor t of an autopsy conducte d 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 W illiams
, under the test adopted in Davis
, and under J ustice Thomas’ s ‘formality and

s o le mnity ’ rule, autopsy repor ts prepa red by a medical examiner’s office in the normal co u r s e of its duties are nontestimonial. Fur ther, an autopsy repor

t prepa red in the normal course of business of a medial examiner’s office is not rende red testi m o n i al mere ly beca use the assistant medical examiner perf orming the autopsy is awa re that police suspect homicide and that a spec ific individual might be r esponsible.” Id. ¶ 136. ¶ 42 The court found even if the trial court err ed in admitting the autopsy repor t, any err or was harmless beca

use if the autopsy repor

t and medical examiner’s testimony wer e omitted from evidenc e, the outcome of the trial would nothave be en diffe rent. Id . ¶ 150. I n a dis senting opinion, Chief J ustice Kilbride disag ree d with the majority ’s relianc e on W ill i a m s , “a fra ctured o p i n i o n with no majority support for its rationale .” Id

. ¶ 161 (Kilbride, C.J
., dissenting)

. He further stated the court should have been guided by Crawf ord v. W ashington
, 541 U.S. 36 (2004), beca

use W illiams is fac tually distinguishable. Leach
, 2012 I L 111534, ¶ 164. He also disagree d with the majority ’s harmless err or analy sis, beca use it was dicta and purely advisory

. Id . ¶ 170. ¶ 43 Ap p l y i n g the holding in Leach
, we find the autopsy repor t was not testimonial an d i t s admission into evidenc e did not implicate Br ewe r’s confr ontation clause rig hts. The purpose of the autopsy was to deter mine how McEwe n died, not who was responsible. Nothing in the

au t o p s y report linked Br ewe r to the shooting and it is only when the autopsy finding s ar e viewed in light of Br ewe r’s own state ment to the pol ice and other e vidence at trial is there a connection established betwee n Br ewe r and the crime. F urther, the trial court did not err in permitting someone other than the medical examiner who perf ormed the autopsy to testify beca use as the supreme court stated in Leach
, “if the [autopsy ] repor t was proper ly admitted, the expert witness’s t estimony cannot have viol ated the confrontation clause e ven if it had the eff ect of offe ring the repor

t for the truth of the matters asser t ed th er ei n.” Id. ¶ 57. There fore
, we find the trial court did not err in pe rmitting the State to pr esent Dr. Coga n to testify about the results of Dr. Chira’s autopsy repor t on McEwe n. Since there was no err or in the first instance, the re c an be no pla in error

. Bannister , 232 I ll. 2d at 79. ¶ 44 Fur

ther, even if this court finds the trial court err ed in permitting Dr. Coga n to testify
, this

was not the ty

pe of structura l err or that wo uld require automatic reve rsal reg ardle ss of forf eiture or lack or prejudice

. People v. Glasper
, 234 I ll. 2d 173, 197-98 (2009) (“a utomatic

reve rsal is only require d wher e an err or i s deeme d ‘structura l,’ i.e.
, a sy stemic error which

serve s to ‘er ode the integ rity of the judicial p roce ss and undermine the fairne ss of the defe ndant’s trial’ ”). The United States Supreme Court has found infring ement of four basic rig hts of defe ndants constitute structura l err or requiring automatic reve rsal: the rig ht t o counsel; the rig ht to self-r epre sentation; the rig ht to a public trial; and the rig ht to a trial by jury when an err oneous i nstruction on rea sonable doub t af fe ct s that right. United States v. Gonzalez-Lopez
, 548 U.S. 140, 149 (2006). I llinois courts have expanded the list to include infring ement of the rig ht to a jury t ri al by the denial of a defe ndant’s reque st for specia l verdic t forms wher e the answe rs to those forms could aff ect the defe ndant’s sentenc e. People v. Smith , 233 I ll. 2d 1, 27-28 (2009).

-11-¶ 45 The al l eged err or i n this case does not fall i nto those cate g ories. I t was not a structur al

err or and there was no prejudice to Br ewe r, who failed to explain what advanta g e he would have g ained by cross-e x amining the phy sician who perf ormed the autopsy

. I

n M elende z-Diaz and Bullcoming
, case s relied on by Br ew er , t h e fore nsic evidenc e at issue, an aff idavit attesting a substance found in defe ndant’s possession was coca ine and defe ndant’s bloodalcohol conce ntration repor t respe ctively
, wer e direc tly rela ted to proving defe ndants’ guilt in the crimes char g ed. Her e, the autopsy repor t prepa red by Dr. Chira mere ly states the cause of death, an issue never

in doubt. On cross-e x amination, defe nse counse l asked Dr . Coga n whether McEwe n was shot at close-r ang e and whether the autopsy finding s would have been differ ent if the shooter wer e left or rig ht hand ed

. Dr. Coga n stated there was no evidenc e McEwe n was shot at close rang e and neither he nor Dr. Chira could have an opi n i o n as to whether the shooter was left- or rig ht-hande d. In short, cross-e x amining Dr. C h i ra wo uld have not elicited evidence that could have chang ed the outcome of the trial, and ther efor e, the State’s fa ilure to prese nt him as a witness was not be r ever sible err or.

¶ 46 D. Expert Testimony on Post-Traumatic Stress Disorde r ¶ 47 Next, Br ewe r contends he was denied his rig ht to prese nt a defe nse wher e the trial court barr ed Dr. J oyce Mille r fr om testifying about his police-r elated PTSD. Br ewe r asser ts his defe nse wa s that the inculpatory statement he g ave to the police was incre dible beca use he suffe red from police-r elated PTSD when he g ave the statement, and the trial court preve nted him from introducingexpert witness testimony about his PTSD diagnosis and tre atment. ¶ 48 “The admission of the opinion of an exper t , l i k e t h e ad m i ssion of any evidenc e, is a
matter within the discretion of the trial court.” Peop l e v. Dr i ve r , 62 I ll. App. 3d 847, 853 (1978). “Where the trial court’s ru l i n gs re strict the rig ht to prese nt a defe nse or to crossex amine witnesses, our duty on revie w is to deter mine whether the trial court’s ruli n gs constituted an abuse of its discretion.” People v. Jack son , 303 I ll. App. 3d 583, 587 (1999). ¶ 49 Dr. Miller orig inally testified during the h ea ring on Br ewe r’s motion to suppress. She said she t reated Brewe r be t we en M ay and J une of 2001, when he was refe rre d to her for a
psychiatric evaluation to deter mine if a homebound program wa s still neede d from his school. She initially met with B rew er on May 14, 2001, and lear ned he had been beate n by police about 1 1⁄2 months ear lier and had been pl ace d in a homebound program for school. Miller diagnosed Br ewe r with PTSD resul t i n g fr o m the incident and presc ribed Z oloft to manag e his sy

mptoms. She testified Br ewe r could have a stressful rea ction to seeing a police

car or hearing sirens. On cross-e x amination, Miller said she last saw Br ewe r on J une 4, 2001, and had no opinion reg arding the events surrounding his arr est on J une 27, 2001, including whether he wa s still takinghis medication or whe ther his statement wa s fre ely g iven. ¶ 50 Be fore trial, the State filed a motion in limine to pr eclude Miller’s testimony beca use it

was irrele vant as she had no opinion as to the vol u n t ar i n es s of Br ewe r’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 beg an, the State rene wed its motion once transcripts wer e secur ed. The trial court barr ed Miller’s testimony
, finding it could confuse the jury and would not shed any light on any issue in the case , beca use Miller was unable to

-12-rende r any opinion or make a projec tion as to wh et h er Br ewe r was susceptible to police

pressure to give a stateme nt on the issue of voluntariness. ¶ 51 The trial court has the power and discretion to e x clude evidenc e offe red by the defe nse in a criminal case on the bas i s o f i rr eleva ncy without infring ing on an acc used’s constitutional rig ht to prese nt a defe nse. People v. Dalzotto
, 55 I ll. App. 3d 995, 998 (1977). See also Chambers v. Mississippi
, 410 U.S. 284 (1973); W ashington v

. Texas
, 388 U.S. 14 (1967). “ Testimony

is releva nt if it would, if believed, te nd to make any fac t in issue more

or less probable than it would be without the testimony .” People v. Makie l
, 263 I ll. App. 3d 54, 70 (1994). ¶ 52 We find the trial court did not abuse its discretion in barring D r. Miller fr om testifying
at trial. Contrary to Br ewe r’s asser tions, she did not have an opinion as to whether Br ewe r’s PTSD aff ecte d the voluntariness of his statement to police. She had last seen Br ewe r sever al

wee ks prior to the shooting and was unawa re if he was takingthe presc ribed medication at the time of his arr est. Thus, her testimony was irrele vant to the voluntariness of Br ewe r’s
statement at the time of his arr est and its exclusion did not infring e on his rig ht to pr esent a defe nse.

¶ 53 E. Def endant’ s Prison S entenc e ¶ 54 Br ewe r next argues his ag g reg ate 80-year sentenc e i s ex cessive wher e the trial judg e place d emphasis on a fac tor inhere nt in the offe nse and failed to adequately consider he was 18 y ea rs old at the time of the offe nse, had a minimal criminal background, and had signific ant potential for r ehabilitation. ¶ 55 In imposing a sentenc e on a defe ndant, the trial judge may not consider fac ts implicit in the underlying offe nse for which defe ndant was convicted. People v. Jame s , 255 I ll. App. 3d 516, 531 (1993). A judge may consider the nature and circ umstances of the offe nse, howeve r, including the nature and extent of eac h element of the offe nse as committed by the defe ndant. Id

. at 532. “A revie wing court may not alter a defe ndant’s sentenc e absent an abuse of discretion by the t rial court.” People v . Alexande r , 239 I ll. 2d 205, 212 (2010). A sente nce will be deeme d an abuse of discretion wher e it is “ ‘greatly at varia nce wi t h t he spirit and
purpose of the law, or manifestly disproportionate to the nature of the offe nse.’ ” Id

. (quoting People v. Stacey
, 193 I ll. 2d 203, 210 (2000), citing People v. Fern
, 189 I ll. 2d 48, 54 (1999))

. “[W ]here mitigation evidenc e is befor e a court, it is presumed the court considere d that evidenc e, absent ev i d en ce to the contra ry .” People v. Lampley
, 405 I ll. App. 3d 1, 13 (2010) (citing People v. Canet
, 218 I ll. App. 3d 855, 864 (1991))

. The sentenc ing rang e for first degree murder is be tween 20 a nd 60 y ear s. 730 I L CS 5/ 5-8-1( a)( 1)(a) (West 2008). ¶ 56 During the sentenc ing hearing, the trial court noted applicable fac tors in mitigation and
ag g ravation. Duringag g ravation, the trial court made the followingstatements: “F actor s in ag g ravation, the defe ndant’s conduct did cause or threaten serious harm, the ultimate serious harm, murder. The defe ndant rec eived compensation for committing the offe nse, no, but this was a robber y that turned into a m urder
, felony murder. The defe ndant has a history of prior delinquency or criminal activity

. Although minimal, y es, he does have a history of prior delinquency
, not a strang er to the criminal justice sy stem.

-13-Four is not applicable . Five is not applica ble. Six is not applicable

. Seven is a bsolutely applicable

. The sente nce is nece ssary to deter others from committing t he same crime. Eig ht and nine are not applicable

. And I believe the other fac tors in ag g ravation that I ’ve looked through, 10, 11, 12, 13, 14, 15, on through 20 and 21 ar e not applica ble.” ¶ 57 The recor d does not indicate the trial court empha siz ed a f actor inhere nt in the offense during sentenc ing. Contrary to Br ewe r’s asser tions, the fac t his conduct threatened or cause d serious harm is not a fac tor inhere nt in the crime itself but is a proper ag g ravating fac tor to be conside red dur ing se ntencingeven in c ases whe re serious bodily harm is implicit in t he offe nse. See People v. Salvidar
, 113 I ll. 2d 256, 269 (1986); People v. Solano
, 221 I ll. App. 3d 272, 274 (1991); People v. Spence r , 229 I ll. App. 3d 1098, 1102 (1992). M o re o v er, Br ewe r’s sentenc e was well within the statutory sentenc ing rang e for first degree murder, and the e xistence of mitigating fac tors does not mandate imposit ion of the minimum sentenc e nor prec lude imposit ion of the maxi mum se ntence

. People v. Flores
, 404 I ll. App. 3d 155, 158 (2010). We conclude the trial court did not abuse its discretion in sentenc ing Br ewe r to a 50-
y ear prison term for

first degree murder. ¶ 58 Br ew er al s o rec eived a consec utive 30-year prison term for persona lly discharg ing a firea rm that ca used the de ath of a

nother. S ection 5-8-1(a) (1)( d)(iii) of the Unified Code of Correc tions states: “if, during the co mmissi on of the offe nse, the person persona lly discharg ed a firea

rm that p rox imately cause d g rea t bodily harm, perma

nent disability
, perma nent disfigur ement, or death to another person, 25 y ear s or up to a term of natura l life shall be added to the term of imp ri sonment imposed by the court.” 730 I L CS 5/5-8- 1(a) (1)( d)(iii) (West 2006). Br ewe r’s additional 30-year prison term was we l l within the statutory sentenc ing r ang e. The sentenc e wa s not an abuse of discretion.

¶ 59 F. Mittimus ¶ 60 L astly
, Br ewe r contends th e m i t t i mus should be amended to ref lect one conviction for first degree murder rathe r t h an two and to further state Br ewe r was sentenc ed to a

consec utive 30-year prison term for persona lly discharg ing a firea rm that proxi mately cause d the death of the victim. See 730 I L CS 5/5-8-1(a )(1) (d)( iii) (West 2008). The State conce des the mittim us should be corr ecte d. ¶ 61 This court has the authori t y t o d i re ct l y order the cler k of the circ uit court to make the

nece ssary corr ections to Br ewe r’s sentenc ing order

. People v. McCray
, 273 I ll. App. 3d 396, 403 (1995). The ref

ore, w e dire ct the cle rk of the c ircuit court to cor rec t the mitti mus.

¶ 62 I I I . CONCLUSI ON ¶ 63 For the fore g oing rea sons, we aff irm the defe ndant’s conviction and sentenc e, and orde r the mittim us to be corr ecte d.

¶ 64 Affir

med; mitti mus corre cted.

-14-