2021 IL App (2d) 190742-U 

No. 2-19-0742 

Order filed September 9, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent 

except in the limited circumstances allowed under Rule 23(e)(l).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of Kane County. 

) 

Plaintiff-Appellee, ) 

) 

v. ) No. 17-CF-1536 

) 

KAREEM M. SOLOMON-BEY, ) Honorable 

) Kathryn D. Karayannis,

Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________ 

JUSTICE BRENNAN delivered the judgment of the court.

Justices Hudson and Birkett concurred in the judgment.

ORDER

¶ 1 Held: The plain-error rule did not excuse forfeiture of claim that defendant’s 

confrontation rights were violated when the State’s forensic expert testified as to 

the conclusions of a nontestifying forensic expert that a substance produced by the 

defendant during a controlled buy was cocaine. Though it was error to allow the 

testimony without the ability to cross-examine the authoring expert, there was 

sufficient circumstantial evidence that the substance was cocaine such that the error 

was harmless. 

¶ 2 Following a jury trial, defendant, Kareem M. Solomon-Bey, was convicted of three counts 

of unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 2016)) and sentenced 

to three concurrent four-year terms of probation. Defendant timely appeals. Regarding one of the 
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counts, he contends that he was deprived of his right to a fair trial where he could not confront the 

expert who prepared the laboratory test result used to convict him. We affirm.

¶ 3 I. BACKGROUND

¶ 4 Defendant was charged with delivering cocaine on four occasions: December 8, 2016; 

December 13, 2016; December 20, 2016; and January 4, 2017. All four transactions were between 

Benjamin Williams, a confidential informant working with the Elgin Police Department, and a 

man Williams knew as “Twin.” He later identified “Twin” as defendant. For each transaction, 

Williams wore a recording device, or “wire.” The device recorded only video, but no audio for 

the December 8, 2016, transaction; it recorded audio and video of the remaining transactions. 

¶ 5 Defendant represented himself at trial. Williams and several police officers described the 

four transactions as follows. On December 8, 2016, Elgin Police Department detectives Marcy 

Kogut and Adam Arnold met with Williams, searched him, and gave him $100 in prerecorded 

funds to purchase cocaine. In front of Kogut, Williams called a phone number. Defendant 

answered, and they arranged a meeting. Kogut and Arnold dropped Williams off near Center and 

Cherry Streets, where he had arranged to meet defendant. Williams testified that defendant later 

drove up in a Buick LeSabre. Williams got into the car and gave defendant the $100. Defendant 

handed Williams a plastic bag containing a substance that Williams testified was cocaine. A short 

time later, Williams got out of the car, and defendant drove away. When Kogut and Arnold picked 

Williams up, he handed the bag to Kogut.

¶ 6 On December 13, 2016, Williams called the same number and arranged to purchase $100 

worth of crack cocaine from defendant. Kogut and Lieutenant Chris Jensen met with Williams, 

searched him, and gave him $100 to purchase cocaine. After Kogut dropped Williams off near 

Center and Cherry Streets, defendant drove up in the LeSabre. As before, Williams got into the 
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car and gave defendant the $100. Defendant gave him a plastic bag of a white substance that 

Williams testified was cocaine. Williams then exited the car. When Kogut picked him up after 

the exchange, Williams gave her the bag. Two surveillance officers identified defendant as the 

driver of the LeSabre. 

¶ 7 On December 20, 2016, Williams again called the same number in front of Kogut and 

arranged to buy $150 worth of crack cocaine. Detective Mike Martino searched Williams before 

he dropped Williams off to meet with defendant. Shortly after they dropped him off, Williams 

called Kogut and told her that she forgot to give him the money to buy the drugs. Kogut and 

Martino drove back to the area and gave Williams $150. Thereafter, defendant arrived in the 

LeSabre and Williams got in the car. Once inside, Williams gave defendant the money and 

defendant gave Williams “some crack” in a plastic bag. After that, Williams got out of the car and 

waited for Kogut to pick him up. When Kogut and Martino arrived, Williams got into the car and 

handed Kogut the bag.

¶ 8 On January 4, 2017, Williams again called the same number in front of Kogut and arranged 

to buy crack cocaine from defendant for $150. Sergeant Mark Whaley searched Williams and 

Kogut gave him $150. Kogut and Whaley dropped Williams off near Center and Cherry Streets. 

As before, defendant drove up in the LeSabre. Williams got in and gave defendant the money. 

Defendant gave Williams what he testified was crack cocaine in a plastic bag. Williams then left 

the car. Kogut and Whaley returned and picked up Williams. Williams got into the car and gave 

the bag to Kogut.

¶ 9 The State also called Edward McGill and Martin Skelcy, both forensic scientists with the 

Illinois State Police. Defendant accepted each as an expert in the testing and identification of 

controlled substances.
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¶ 10 McGill testified that he analyzed the substance in the bag Williams gave Kogut on January 

4, 2017. The substance weighed 0.9 grams and tested positive for cocaine.

¶ 11 Skelcy testified that he analyzed the substances from the controlled buys on December 8, 

2016, and December 13, 2016. The former weighed 0.3 grams, while the latter weighed 0.7 grams. 

Both tested positive for cocaine.

¶ 12 Skelcy further testified that he had reviewed a report from Sara Anderson, another state 

forensic scientist. Defendant interjected a hearsay objection, which the court overruled. Skelcy 

testified that Anderson had analyzed the substance obtained during the December 20, 2016, 

purchase. Skelcy identified People’s exhibit No. 30 as Anderson’s report. He noted that Anderson 

tested a “chunky powder” that weighed 0.8 grams. She performed the same tests that Skelcy 

performed on the other two samples. She reported that the gas-chromatograph-mass-spectrometer 

test was positive for cocaine. Based on his training and experience, Skelcy agreed with Anderson’s 

findings that the sample contained cocaine.

¶ 13 The State also called a digital forensics examiner, who linked the number Williams dialed 

to defendant’s phone.

¶ 14 The jury found defendant not guilty of the count related to the December 8, 2016, sale, but 

found him guilty of the remaining counts. The court sentenced him to three concurrent four-year 

terms of probation. Defendant timely appeals.

¶ 15 II. ANALYSIS

¶ 16 Defendant contends that, as to the December 20, 2016, sale, he was deprived of his right 

to confront witnesses when Anderson did not testify about her testing of the alleged cocaine. He 

argues that, by any fair definition, Anderson’s report was testimonial; therefore, his confrontation 
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rights were violated because she was unavailable at trial, and he did not have a prior opportunity 

to cross-examine her.

¶ 17 Defendant acknowledges that, although he contemporaneously objected to Skelcy’s 

hearsay testimony about Anderson’s report, he did not include the issue in a posttrial motion, thus 

forfeiting it. However, he contends that we should review the issue as plain error.

¶ 18 The State responds that the report was not testimonial. The State alternatively contends 

that, even if the report itself were testimonial, Skelcy’s testimony about the report was admissible 

under Illinois Rule of Evidence 703, as the report merely formed the basis of his opinion that the 

substance contained cocaine. The State finally contends that any error was harmless or that, under 

a plain-error analysis, any error did not amount to plain error.

¶ 19 To preserve a purported error for appeal, a defendant must object at trial and raise the issue 

in a posttrial motion. People v. Sebby, 2017 IL 119445, ¶ 48. The failure to do either results in 

forfeiture. Id. However, Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) provides that 

substantial or plain errors “may be noticed although they were not brought to the attention of the 

trial court.” Id. Illinois courts have identified two instances when it is appropriate to do so: 

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

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

the error,” or (2) when “a clear or obvious error occurred and that error is so serious that it affected 

the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless 

of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007); see People v.

Herron, 215 Ill. 2d 167, 186-87 (2005). “Under both prongs of the plain-error doctrine, the 

defendant has the burden of persuasion.” People v. Hillier, 237 Ill. 2d 539, 545 (2010). The first 
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step in deciding whether plain error occurred is to determine if there was a clear or obvious error 

at all. Sebby, 2017 IL 119445, ¶ 49.

¶ 20 In Crawford v. Washington, 541 U.S. 36, 59 (2004), the United States Supreme Court held 

that a “testimonial” statement is inadmissible against a defendant unless the declarant is 

unavailable and the defendant has had a prior opportunity for cross-examination. A statement is 

testimonial when its “primary purpose *** is to establish or prove past events potentially relevant 

to later criminal prosecution.” Davis v. Washington, 547 U.S. 813, 822 (2006).

¶ 21 In three subsequent cases, the Court considered the application of Crawford to forensic 

testing. In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the Court considered a 

Massachusetts procedure by which the results of chemical testing could be introduced by way of 

a forensic analyst’s sworn certificate without the need for the analyst to testify. The Court held 

that the certificates in that case were testimonial and could not be introduced into evidence unless 

the analyst testified. Id. at 310-11. 

¶ 22 Two years later, in Bullcoming v. New Mexico, 564 U.S. 647 (2011), the Court held that 

forensic test results could not be introduced through the “surrogate testimony” of a forensic analyst 

who did not personally perform or at least observe the test in question. Id. at 652. There, the

defendant was charged with driving while intoxicated after a laboratory report showed that his 

blood-alcohol concentration (BAC) was well above the legal limit. Id. at 651. On the day of trial, 

the prosecution stated that it would not be calling the analyst who performed the test, Curtis Caylor, 

because he had recently been “ ‘put on unpaid leave.’ ” Id. at 655. Instead, the State offered the 

report as a business record through the testimony of another analyst, Gerasimos Razatos, who 

neither observed nor reviewed Caylor’s analysis. Id. The Court noted that the “surrogate 

testimony of the kind Razatos was equipped to give could not convey what Caylor knew or 
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observed about the events his certification concerned, i.e., the particular test and testing process 

he employed.” Id. at 661. “Nor could such surrogate testimony expose any lapses or lies on the 

certifying analyst’s part.” Id. at 661-62. The Court continued:

“Significant here, Razatos had no knowledge of the reason why Caylor had been placed on 

unpaid leave. With Caylor on the stand, Bullcoming’s counsel could have asked questions 

designed to reveal whether incompetence, evasiveness, or dishonesty accounted for 

Caylor’s removal from his workstation. Notable in this regard, the State never asserted 

that Caylor was ‘unavailable’; the prosecution conveyed only that Caylor was on 

uncompensated leave. Nor did the State assert that Razatos had any ‘independent opinion’ 

concerning Bullcoming’s BAC.” Id. at 662.

¶ 23 Most recently, in Williams v. Illinois, 567 U.S. 50 (2012), a plurality of the Court held that 

the defendant’s confrontation rights were not violated when an expert witness testified that a DNA 

profile prepared by an outside laboratory, Cellmark, matched a profile that the State produced from 

a sample of the defendant’s blood. The lead opinion noted that, in Melendez-Diaz and Bullcoming, 

the reports at issue were “the equivalent of affidavits made for the purpose of proving the guilt of 

a particular criminal defendant at trial.” Id. at 84. By contrast, the DNA profile “was not prepared 

for the primary purpose of accusing a targeted individual.” Id. In other words, its “primary 

purpose ***, viewed objectively, was not to accuse [the defendant] or to create evidence for use 

at trial.” Id. Rather, its purpose “was to catch a dangerous rapist who was still at large, not to 

obtain evidence for use against [the defendant], who was neither in custody nor under suspicion at 

that time.” Id. Moreover, the report was admissible to the extent that it formed part of the basis 

of the testifying expert’s opinion that the DNA profiles matched. Id. at 71-73. See Ill. R. Evid. 

703 (eff. Jan. 1, 2011); cf. Fed. R. Evid. 703 (eff. Dec. 1, 2011).
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¶ 24 The plurality opined that admitting the reports of nontestifying experts under these 

circumstances would not lead to widespread Crawford violations, as adequate safeguards exist:

“First, trial courts can screen out experts who would act as mere conduits for hearsay by 

strictly enforcing the requirement that experts display some genuine ‘scientific, technical, 

or other specialized knowledge [that] will help the trier of fact to understand the evidence 

or to determine a fact in issue.’ Second, experts are generally precluded from disclosing 

inadmissible evidence to a jury. Third, if such evidence is disclosed, the trial judges may, 

and under most circumstances must, instruct the jury that out-of-court statements cannot 

be accepted for their truth, and that an expert’s opinion is only as good as the independent 

evidence that establishes its underlying premises. And fourth, if the prosecution cannot 

muster any independent admissible evidence to prove the foundational facts that are 

essential to the relevance of the expert’s testimony, then the expert’s testimony cannot be 

given any weight by the trier of fact.” [Citations omitted.] Williams, 567 U.S. at 80-81. 

¶ 25 Justice Thomas provided the fifth vote. In his separate concurrence, he agreed that 

Cellmark’s report lacked the “ ‘formality and solemnity’ ” to be considered testimonial for 

purposes of the confrontation clause. Id. at 103-04 (Thomas, J, concurring in the judgment) 

(quoting Michigan v. Bryant, 562 U.S. 344, 378 (2011) (Thomas, J., concurring in the judgment). 

The dissent argued that a statement is testimonial if its primary purpose is “providing evidence.” 

Id. at 135 (Kagan, J., dissenting). Because the DNA profile was intended to serve as evidence in 

a possible future criminal trial, it was testimonial. Id.

¶ 26 Our supreme court has subsequently considered forensic evidence in the context of the 

confrontation clause. In People v. Leach, 2012 IL 111534, ¶ 120, the court summarized its 

approach in the wake of Williams: 
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“When we must determine whether a forensic report is testimonial in nature, the 

Williams plurality instructs us to apply an objective test, looking for ‘the primary purpose 

that a reasonable person would have ascribed to the statement, taking into account all of 

the surrounding circumstances.’ [Citation.] If this inquiry reveals that the forensic report 

was ‘made for the purpose of proving the guilt of a particular criminal defendant at trial’ 

[citation], it is testimonial.”

¶ 27 In Leach, the court held that an autopsy report was not testimonial and, therefore, its 

admission at the defendant’s trial did not violate the confrontation clause. The court noted that 

(1) coroners are required by law to investigate all suspicious deaths regardless of whether they are 

being investigated as homicides; (2) autopsy reports are not generally prepared for the purpose of 

accusing a targeted individual, and (3) the report at issue did not specifically link the defendant to 

the crime. Id. ¶¶ 120-27. In People v. Barner, 2015 IL 116949, ¶¶ 63-64, our supreme court 

concluded that a DNA profile, much like the one at issue in Williams, was not testimonial.

¶ 28 In People v. Lewis, 2019 IL App (1st) 160864, ¶ 18, a state firearms identification expert 

testified that he “agreed with” the conclusions of another firearms examiner, who was on medical 

leave at the time of trial. The witness testified that his colleague properly followed all procedures. 

Id. ¶ 17. The appellate court concluded that this testimony violated the defendant’s right to 

confront the expert who conducted the testing. Id. ¶ 37. 

¶ 29 With the above cases in mind, we conclude that Anderson’s report was clearly 

“testimonial.” Although defendant was not yet in custody when Anderson tested the substance, 

defendant was being “targeted” for prosecution (Williams, 567 U.S. at 84), and the testing was 

done for the purpose of proving his guilt at a subsequent trial. Moreover, given the protocols for 
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forensic testing and Anderson’s preparation of a formal, signed report, there was sufficient 

formality and solemnity to satisfy Justice Thomas’s “testimonial” test.

¶ 30 The State insists that the use of the report was not testimonial because Anderson’s report 

was not itself admitted into evidence. Rather, the State argues that Skelcy reached an independent 

expert opinion that the substance tested contained cocaine based upon his review of Anderson’s 

report. According to the State, this was permissible because the report contained the facts and data 

upon which he relied in rendering his own expert opinion. See Ill. R. Evid. 703 (eff. Jan. 1, 2011)

(allowing the admission into evidence of the facts or data upon which an expert bases an opinion). 

In arguing that this practice does not run afoul of the confrontation clause, the State also refers us 

to Justice Sotomayor’s concurrence in Bullcoming where she observes, “We would face a different 

question if asked to determine the constitutionality of allowing an expert witness to discuss others’ 

testimonial statements if the testimonial statements were not themselves admitted as evidence.” 

Bullcoming, 564 U.S. at 673 (Sotomayor, J., concurring). 

¶ 31 Defendant, however, disputes the State’s characterization of Skelcy’s testimony. 

According to defendant, Skelcy merely testified to Anderson’s conclusions and stated that he 

agreed with her. We need not resolve this issue, however, given the State’s alternative argument 

that any error in admitting Skelcy’s testimony about Anderson’s testimonial report was harmless. 

As the State correctly observes, if the error is harmless, it cannot amount to first-prong plain error. 

We combine the analyses, because “if an error was harmless, it most certainly cannot rise to the 

level of plain error.” Leach, 2012 IL 111534, ¶ 141. 

¶ 32 In considering whether a given error is harmless, a reviewing court may (1) focus on the 

error itself to determine if it might have contributed to the conviction; (2) examine the other, 

properly admitted evidence to see whether it overwhelmingly supports the conviction; or 
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(3) determine whether the improperly admitted evidence is merely cumulative of or duplicates 

properly admitted evidence. Barner, 2015 IL 116949, ¶ 71. 

¶ 33 The State likens this case to Leach, where the court concluded that, even if the autopsy 

report in question were testimonial, allowing testimony about it was harmless error because the 

cause and manner of the victim’s death were not at issue. The defendant admitted killing his wife 

but contended that he had a less culpable mental state than that for first-degree murder. Leach, 

2012 IL 111534, ¶ 145. The State argues that, likewise, defendant here never disputed that the 

substance Williams received was cocaine; rather, he argued it was a case of mistaken identity. 

Thus, the State argues that the testimony about test results was harmless because it did not directly 

impact defendant’s theory of defense. This argument, however, ignores the State’s burden to prove 

beyond a reasonable doubt that the substance was in fact cocaine.

¶ 34 Defendant contends that, other than Skelcy’s “surrogate expert testimony,” the State 

presented no evidence that the substance delivered on December 20, 2016, actually contained 

cocaine. Thus, according to defendant, the State’s evidence was insufficient to prove an element 

of the offense, rendering the evidence “closely balanced.” Careful consideration of the record, 

however, belies this contention. 

¶ 35 While the State must, of course, prove the identity of an alleged controlled substance, it 

need not do so through chemical testing. People v. Eichelberger, 189 Ill. App. 3d 1020, 1027 

(1989) (citing People v. Robinson, 14 Ill. 2d 325, 330-31 (1958)). Rather, as in other cases, the 

State can prove its case by circumstantial evidence. Id. Evidence that will support a conviction 

includes: 

“ ‘The exorbitant price paid for the small amount of substance; the fact it was a powder; 

that [the witness] had been a user and had had previous transactions in narcotics with the 
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[defendant]; * * * that [the witness] sold the substance to his customers as [a controlled 

substance] and that none of them “kicked” or complained ***.’ ” Id. at 1028 (quoting 

Toliver v. United States, 224 F.2d 742, 745 (9th Cir.1955)).

¶ 36 In People v. Harrison, 26 Ill. 2d 377, 379 (1962), the supreme court held that the trial court 

erred in admitting a stipulation that a chemical analyst would testify that a substance sold by the 

defendant tested positive for heroin. However, the court determined that the error was harmless 

due to the circumstantial evidence that the substance was heroin. The evidence was that the agent 

asked the defendant to get him a half ounce of “ ‘stuff’ ” (meaning heroin); the defendant replied 

that he would “ ‘try’ ”; the agent paid the defendant $80; and several hours later, the defendant 

delivered a half ounce of a “whitish” powder represented to be heroin. Id. at 379-80; see also 

People v. Budinger, 230 Ill. App. 3d 279, 289-90 (1992) (evidence that defendant held out a white 

powdery substance as cocaine and sold it as such supported conviction). While in both Harrison

and Budinger there was evidence that the officers had field tested the substances, which did not 

occur here, there was still sufficient circumstantial evidence to sustain a conviction for the 

December 20 delivery. 

¶ 37 The State presented evidence that Williams, a former crack addict, called defendant at least 

three times1 and asked to purchase cocaine. Each time, defendant agreed and, upon meeting 

Williams, handed him a substance in exchange for a substantial payment. Skelcy’s tests 

established that the substance defendant provided on two of these occasions was in fact cocaine. 

Williams testified that the December 20, 2016, transaction was essentially the same process, price, 

1 We do not consider the evidence related to the December 8, 2016, sale for which 

defendant was acquitted.
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and content as the other two: he got in defendant’s car, put the money on the console, and defendant 

gave him what appeared to be cocaine.

¶ 38 Further, Williams, a former addict, testified without objection that the substance he 

received on December 20, 2016, was cocaine. “[L]ay or inexpert witnesses may have, by use, 

observation, or experience, sufficient knowledge of the appearance, odor, taste, characteristics and 

effect of intoxicating liquor or drug to enable them to identify and distinguish them.” Robinson, 

14 Ill. 2d at 332; see People v. Olive, 248 Ill. App. 220, 224-25 (1928). Moreover, where admitted 

without objection, all evidence, including opinion evidence, has the same effect and may be given 

the same weight as though it were legally admissible. Bunch v. Rose, 10 Ill. App. 3d 198, 209-10 

(1973); see also Olive, 248 Ill. App. at 224-25. Thus, Williams’ opinion, to which defendant did 

not object, can be considered as circumstantial evidence of the identity of the substance defendant 

delivered on December 20, 2016.

¶ 39 Taking all the relevant evidence into account, and discounting the Anderson testimonial 

evidence, we conclude that the circumstantial evidence was sufficient to prove that the substance 

delivered on December 20 by defendant was cocaine beyond a reasonable doubt. Accordingly, 

the error in the introduction of the Anderson testimonial hearsay was harmless and, accordingly, 

there was no first-prong plain error. See Leach, 2012 IL 111534, ¶ 141 (if an error was harmless, 

no plain error). To escape the application of harmless error to its plain-error analysis, defendant 

finally argues that his inability to cross-examine Anderson was second-prong plain error. A plain 

error under the second prong is “a clear or obvious error [that] is so serious that it affected the 

fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless of 

the closeness of the evidence.” Piatkowski, 225 Ill. 2d at 565. In People v. Patterson, 217 Ill. 2d 

407, 424-25 (2005), our supreme court held that confrontation clause violations are subject to a 
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harmless-error analysis. In other words, a confrontation clause violation requires an assessment 

of the strength of the evidence. Logically, then, it cannot be second-prong plain error, which 

mandates reversal regardless of the closeness of the evidence. The court in Lewis reached this 

same conclusion. Lewis, 2019 IL App (1st) 160864, ¶ 52. 

¶ 40 III. CONCLUSION

¶ 41 We affirm the judgment of the circuit court of Kane County.

¶ 42 Affirmed.