2013 I LApp (1st) 102476 SI XTH DIVI SI ON Dec ember

2, 2013 No. 1-10-2476
THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellee , v. EL L I OT ROB I

NSON, Def endant- Appellant. ) ) ) ) ) ) ) ) ) Appea l from the Circuit Court of Cook County No. 06 CR 21382 Honora ble J oseph M. Claps, J udg e Presiding
.

J USTI CE REYES delivered the judg ment of the c ourt, with opinion. Presiding Justice Rochford a nd J ustice Ha ll concurr ed in the judg ment and opinion. OP INION ¶ 1 Followinga jury

trial in the circ uit court of Cook County , defe ndant Elliot Robi nson was found guilty

of first degree murder ( 720 I L CS 5/ 9-1(a )(1) (West 2004)) and se ntence d to 48 y ear s in prison. On appea l, defe ndant contends: (1) the admission of the victim' s statement made shortly befor e his death violated defe ndant' s rig ht to confront the witnesse s ag ainst him; (2) the trial judg e should have excluded the toolmark and f irea rms identification evide nce a s lackinga scientific ba sis or conducte d a hea ringon the admissibilit y

of the e vidence ; (3) the tria l court should have suppre ssed testimony reg ardingdefe ndant' s statement made in the loc kup; (4) the trial court e rre d in admitting def endant' s statement that he sold bullets to the victim; and (5) the jury venire was improper ly

questioned during voir dire in violation of I llinois Supreme Court Rule 431(b) (e ff. Ma

y 1, 2007). F or the followingrea sons, we re ject def endant' s arg

uments and aff irm the judg ment of the c ircuit court.1-10-2476

¶ 2 BA CKGROUND ¶ 3 The re cord on a

ppeal discloses the followingfac ts. Defe ndant was indicte d on six counts of first degree murder a

nd four c ounts of ag g ravated unlawf ul use of a w eapon f

or the Oc tober 12, 2005, shooting de ath of Centra le Collins (Col lins). Prior to trial, defenda nt filed five motions in limine rele vant to the issues raise d in this appeal. ¶ 4 Pretrial Motions ¶ 5 Def

endant f iled a motion to ex clude state ments Colli ns provided to par amedic L eroy Phill ips (Phill ips) shortly befor e his dea

th. Defe ndant ar gued these statements wer e inadmissible testimonial hearsa

y under Crawf

ord v. W ashington , 541 U.S. 36, 68 (2004). The trial court denied the motion, rulingthe statements we re a dmissibl e as dy ing de clar ations and not testimonial. ¶ 6 Def

endant a lso filed a motion seekinga hea ringon the admissibilit y

of the State' s proposed use of toolmark and f irea rms identification evide nce pur suant to Frye v . United States , 293 F. 1013, 1014 ( D.C. Cir. 1923). The motion argued toolmark a nd firea rms identification analy sis has not been scie ntifically validated a

nd lacks objec tive standards or a known e rror

rate
. The motion also asser

ted there is no ge nera l consensus that toolmark and f irea rms examiners can make a n identification base d on a fe w matchingchar acte ristics. The trial c ourt, indicatingthere is no scientific proc ess involved in firea rms comparison which would be subjec t to Frye , denied the motion for a he aring
. ¶ 7 Def

endant subseque ntly

moved to prec lude the State' s firea rms examiners from testifying that their conc lusions were w ithin "a r easona ble degree of scientific cer tainty ." T he trial c ourt
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ruled the State' s firea

rms examiners would be per mitted to testi fy

reg ardingtheir expertise in their re spective f

ields, but would be barr ed fr om opining and te stifying the ir conc lusions were within "a r easona

ble degree of scientific cer tainty ." ¶ 8 In addition, defe ndant filed a motion in limine to bar the State f rom introducingevidenc e that defe ndant was involved in the June 2, 2005, arme d robber y of Arne Kent (K ent) a

nd Gene va Be nton (Be nton) (the Ke nt robbery ). The State sought to admit evidence of the Kent r obbery beca use the fir ear

ms evidence indicated c artridg e ca ses re cover ed by police at the sc ene of

the Colli ns shooting and c artridg es fire d duringthe Kent r obbery wer e fire d from the same wea pon. As one of the victims in t he Ke nt robbery identified def

endant a s the perpe trator, the State a rgued the evidenc e of the Kent robbe ry was a dmissibl e as e vidence of the shooter ' s identity in this case. The trial c ourt denied de fenda nt's motion to exclude the evidenc e fr om the Kent robbe ry . ¶ 9 L astly , defe ndant moved to exclude any statements def

endant made which we re not
rec orded in a ccor dance with state law. See 725 I L CS 5/ 103-2.1 (West 2008). The trial court hear d this mot ion prior to the trial testimony of Chicag o police dete ctive Da nny Stover. At the suppression hea

ring , Detec tive Stover testified def endant, while be ing taken to the lockup a rea to be proc essed, a dmitted he was at the scene of the shooting , but asserte d he wa s not the shooter. The police previously

rec orded de fenda

nt denying a

ny knowledg e or infor

mation reg ardingthe shooting. The trial court de nied the motion to ex clude the te stimony as to defe ndant' s statements, findingthe statements in the lockup a rea wer e spontane ous and not the produc t of police interrog ation.

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¶ 10 J ury Selection ¶ 11 During voir dire , the trial cour t expl ained the f

ollowing leg al principles to the jury venire : defe ndant was pr esumed innoce nt; the State bore the bur den of pr oving de fenda nt guilty beyond
a re asonable doubt; and defe ndant had the r ight to not pre sent evidenc e and not testify . After discussing e ach pr inciple, the trial c ourt reque sted the potential jurors to ra ise their hands if the y had a pr oblem with the principle. No juror s raised the ir hands af ter these questions were posed. Def ense c ounsel lodg ed no objec tion to thi s proce dure. ¶ 12 Trial ¶ 13 Def

endant’ s trial commence d on Dec ember 1, 2009. Neil Sennett, a pa rame dic for the City of Chicag o fire de partment, testified that on October 12, 2005, he wa s dispatched to the
corne r of 71st Street a

nd Champlain Avenue at 3:57 p.m. Sennett observed Collins lying on his back in the r ear

g arde n of 7131 South Champlain Avenue a nd the first re sponders fr om fire eng ine 61 (the e ng ine) we re a dminist eringemer g ency car e with oxyg en, tra

uma dre ssings a

nd saline IVs. Sennett spoke to Collins at the scene. A ccor ding to Senne tt, Col lins was conscious and ale rt. Sennett reque sted Collins ' name, date of birth and a ddress, a nd Colli ns responde d
acc ording ly . Sennett further testified that af

ter Collins was place d in the ambulance , he wa s g iven oxy g en, anothe r saline IV, and wound c are beca use he w as blee ding pr ofusely . Acc ording to Sennett, Coll ins was not administered pa inkillers beca use the only

painkiller on boar d was morphine, which w ould have dr opped his blood pressure further
. ¶ 14 Inside the ambulanc e, Collins inqui red of Sennett whether

he wa s g oing to die. Senne tt testified he he ld Coll ins' ha nd and said, " [Y] es, youngman, I ’m sorry y ou are g oing to die."
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Immediately

there afte r, Sennett hea

rd his partne r Philli ps inquire whethe r Collins knew who shot him. Sennett heard Collins respond it was " Elliot." Phill ips inquired wher e Elliot was from, to which Collins responded, " 71st and Champlain." When Phillips i nquired of Collins why he wa s shot, Sennett heard him re ply Elliot accused Collins of stealingElliot's wea pon. ¶ 15 Sennett then drove the ambulanc e to Strog er H ospital at 4:13 p.m. Accordingto Sennett, Colli ns was consc ious when he ope ned the r ear of the ambulance, but Collins died before he and Phill ips transported Collins through the first set of hospital doors. ¶ 16 Phill ips testified he wa s dispatched to 7131 South Champlain on October 12, 2005. Phill ips confirmed the eng ine par amedic at the scene had administere d Colli ns an IV with two bag s of fluid, ox yg en and ba ndag es bef

ore Phillips arrived, but no medica tion. After spe aking with the eng ine par amedic, Phillips spoke to Col lins and inquired about his name, date of birth and other g ener al questions. Acc ordingto Phil lips, Col lins was awake and c onscious when the questions were beingposed to him. ¶ 17 After

Colli ns was plac ed in the ambulanc e, Collins inqui red of Sennett whether

he wa s g oing to die; Senne tt informed him he was. Phillips testi fied he then inquired of Collins who shot him and Coll ins responded " Elliot." Phili ps then inquired, " Elliot who? " a nd Colli ns replied, " Elliot from 71st and Champlain." Phillips also t estified he a sked Collins "Why did he shoot y ou? " a

nd Colli ns said, "O ver a

stolen g un." ¶ 18 Phill ips and Sennett then transpor ted Collins t o Stroge r Hospital. Philli ps further testified he complete d a run she et re g ardingthe incident and note d Colli ns provided a statement while beingprepa

red f or transpor

t.
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¶ 19 Dr. Ke ndall Crowns, a Cook County deputy medical e x aminer, te stified he per formed the autopsy of Collins on October 13, 2005. Dr . Crowns observe d five through-and- throug h gunshot wounds. Dr. Crowns a lso observed se vera l abra sions on the body and a br uise to the rig ht ey e, which Crowns opined c ould have be en ca used fr om a fig ht or a fa ll. Dr. Crowns opined the
cause of death was multiple gunshot wounds a nd the manner

of death was homicide. ¶ 20 Detec tive Danny

Stover testified he w as assig ned to investig ate the Collins shooting and proce eded to 7131 South Champlain Avenue at 5:15 p.m. Detec tive Stover was infor med by other de tectives Collins had died, but had provided statements to the para medics. De tective Stover' s partner , Timothy Murphy , sear ched a

databa se of public r ecor ds for a n "E lliot" near

71st Street and Champlain Ave nue, which y ielded one r esult, for de fenda nt at 7141 South C hamplain Avenue . Detec tive Stover testified he pr ocee ded to that addr ess with other off icer s and spoke to defe ndant' s mother. Dete ctive Stover lef t the residenc e, but re mained outside for a short while, at which point a vehic le ca

rry ing de fenda

nt arrive d. Detec tive Stover identified def endant in cour

t. Stover also testified he notifie d defe ndant his name wa s mentioned in an investig ation. After defe ndant agree d to talk, Detec tive Stover and de fenda nt proce eded to Ar ea 2 police headqua rters. A ccor ding to De tective Stover, c rime laboratory personne l perfor

med a gunshot residue te st on defenda

nt before Detec tive Stover escor ted him to Area

2 for a n interview. 1 ¶ 21 Detec tive Stover furthe r testified he and De tective Tom Shebish informed de fenda nt of his constituti onal rig hts. The police then spoke to defe ndant re g ardingthe shooting, e ven
The re cord indicates the re sults of the g unshot residue testingwer e neg ative. F orensic 1 scientist Ellen Connelly

was una ble to conclude whether

defe ndant fire d a we apon. 61-10-2476

"f ishing" with lies to see how he w ould respond, for instance, to the a ssertion Collins had bee n shot 20 tim es. De tective Stover a dded the c onversation with defenda nt was re corde d on a videotape, a

reda cted ve rsion of which w as shown to the jury , with instructions the jury was not to speculate reg ardingthe contents of the reda cted por tions. ¶ 22 On the videotape , defe ndant ac knowledg ed he kne w Collins, butindicated the two w ere not close fr iends. Def

endant state d he met with Collins on t he Monday prior to the shooting , at which time Collins i nformed him " some guy s were f***ingwith him." Acc ordingto defe ndant, Colli ns said he nee ded bullets and de fenda nt replied he would attempt to obtain some bullets from his brother . Def

endant f urther stated he obtaine d the bullets at Collins ' reque st and sold them to Coll ins for $30. In addition, defe ndant stated that on the da y of the shootinghe attende d a cla ss at Chicag o State University . Def endant lea

rned of the shooting in a

telephone c all he
rec eived be fore leavingschool at 3:45 p.m. Defe ndant proc eede d from cla ss to meet Tazie Wil liams (Wil liams). Def endant pr ocee ded by

bus and ar

rived at 4:40 p.m. ¶ 23 Continui ngwith his testim ony , Detec tive Stover testified he c onfronted de fenda nt with the statement Collins provided to the para medics bef

ore he died and de fenda

nt denied any involvement. After

defe ndant' s statements wer e re corde d on the videotape , he wa s transfe rre d to the 5th District lockup to be photog raphe d and fing erpr inted. Whil e wa iting for lockup personne l to open the door, de fenda nt informed De tective Stover a nd a De tective Shebish he wanted to talk. Ac cordingto Detec tive Stover, defe ndant stated " this was bogus" a nd he wa s at the sce ne but did not shoot Col lins.

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¶ 24 In Fe bruar

y 2006, Detec tive Stover lear ned the f irea rms evidenc e in the Ke nt robbery matched the firea

rms evidenc e in this case. D etec tive Stover met with Kent and B enton. On August 30, 2006, defenda nt was ar rested f or the murde r of Collins. ¶ 25 Thomas Mande r (Ma nder) , a for ensic investig ator for the Chicag o police depa

rtment, testified that on Octobe r 12, 2005, he pr ocesse d the cr ime scene at 7131 South Champlain Avenue , which wa s a boar ded-up two- flat building. A t the scene , Mander rec overe d five
car tridg e ca ses, identifying the m all to be .40 caliber , but from three differ ent manufa cture rs. 2 ¶ 26 Tiffa

ny Kimble, a for ensic scie ntist employ ed by the I llinois State Police, testified she examined five dischar g ed ca rtridg e ca ses from the Collins shooting and de termined ther e we re no suitable latent fing er impre ssions on any of them. ¶ 27 Cary

n Tucke r (Tuc ker) , a for ensic scie ntist i n the fire arm a nd toolmark section of the I llinois State Police For ensic Scienc e Center , testified she he ld a bac helor' s deg ree in biology , with a minor in chemistry from Quincy

University , as we ll as a master ' s deg ree in forensic scienc e fr om the University of I llinois at Chicag o. Tucke r complete d a two-year training prog ram sponsore d by

the I llinois State Police, which included pr actica l examinations of fire arms and ammunition components. She also attende d course s from the fe dera l Bure au of A lcohol, Tobac co and F irea

rms (ATF ) and f

irea rms manufa cture rs re g ardingthe oper ation and interna l
Mander also rec overe d a blac k, hooded swe atshirt and blood samples fr om the pools of 2 blood on the g round. A for ensic scie ntist employ ed by the I llinois State Police from 2005 to 2008 testified def

endant' s DNA wa s excluded from a mixture taken fr om a portion of the
sweatshirt. 81-10-2476

working s of fire arms. Tuc ker a lso was traine d to use the integ rate d ballistic identification sy stem (I BI S), a computer ized database which ca ptures imag es of f

ired c artridg e ca ses and bullets to compar e evide nce c ollected f rom various c rime sce nes. Tucke r testified she ha s been qua lified to testify as an e x pert in fire arms identifica tion on 27 occasions. Tuc ker ha d completed two proficie ncy

tests in her field dur ing the prior year . ¶ 28 Tucke r explained fire arms identification is a subdiscipli ne of f orensic sc ience conce rned with determiningwhether a fire d car

tridg e ca se or bullet wa s fired by a par ticular we apon. Acc ordingto Tucker , the basis of fir ear ms identification is in the reproduc tion and simil arity of what examiners re fer

to as class c hara cter istics and individual chara cter istics. Cl ass char acte ristics are features dete rmined prior to manuf actur e, such a s caliber , the bre ach f ace pattern , the firingpin impression shape, the number of lands and g rooves a

nd direc tion of twist. 3 4 Individual char acte ristics are imperfe ctions and irre gularities ca used duringmanufa cture or resultingfrom use, a

buse, coe rcion or r

ust. Tucker

testified fire arms examiners use a compar ison microscope , which is essentially two microscope s joined by an optical br idge , to compare the class and individual cha

rac teristics of two piec es of e vidence
. ¶ 29 On cr oss-examination of her qua lifications, Tucke r testified he r compa risons are a subjective de termination, but they are based on obje ctive scie ntific principles a nd verifie d by

a second e x aminer. Tuc ker a lso testified she applied the de finitions and guide lines promulga ted by
Tucke r testified that whe n a bullet is fired, the car tridg e ca se will move rea rwa rd into 3

an ar ea known as the bre ach f ace . "L ands" are the ridg es betwe en g rooves. 4 91-10-2476

the Association of F irea

rm and Tool Mar

k Ex aminers ( AFT E). Tuc ker a g ree d the AF TE guidelines are not mandatory , but added she must follow them to reac h conclusions to a leve l of
cer tainty with which she is comfor table. Tuc ker a cknowledg ed it would be impossible for her to state with absolute ce rtainty that two firea

rms could not produce identical mar kings on a

fired
car tridg e ca se. Tucke r fur

ther testified the incre ased a utomation in firear

ms manufac ture since 1929 cre ates potential c arr y over in subcla ss char acte ristics, e.g ., when somethingon a manufa cturingtool carr ies over f rom one we apon to the next, but the weapons would not have simil ar individual cha

rac teristics. Moreove r, Tucke r testified the A FTE the ory of identification, which is followed by

most firear

ms ex aminers in the c ountry , was the subjec t of a va lidation study
. ¶ 30 After

the trial cour

t found Tucke r qualified to testify as an e x pert, Tuc ker te stified she
rec eived the f

ired c artridg e ca ses from this shooting in De cembe r 2005. Tucke r' s microscopic examination of the car

tridg e ca ses led her

to conclude the y

wer e all discha

rg ed fr om the same
wea pon, a conc lusion verified by a sec ond examiner in her labor atory . Tucke r then plac ed one of the ca rtridg e ca ses into the I BI S, which g ener ated possible links to other incidents. Tucke r ca lled for the de livery

of evide nce f

rom two other incide nts for compa rison, but concluded the car tridg e
case s in this case could not be ide ntified or excluded as ha ving be en fire d from the f irea rms in the other inc idents. ¶ 31 Peter B renna

n (B renna n), a group super

visor in the firea

rm and toolmark se ction of the I llinois State Police For ensic Scienc e Center , testified he ha s a bac helor' s degree from Nor th Central Colleg e and c ompleted the two-year trainingprog ram sponsore d by the I llinois State
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Police. Br ennan a lso attended va rious workshops held by

the FB I , ATF , and fire arms manufa cture rs. B renna

n had bee n qualified to testify as an e x pert in fire arms and toolmar k identification on 26 sepa

rate occa sions in st ate c ourt and onc e in fe dera l court. B renna n participates in annual prof iciency tests and has c onducted thousands of firea rms compar isons. ¶ 32 After

the trial cour

t found Br ennan qua lified as an e x pert witness, B renna n testified he
was a ssigne d to examine evidence related to the Kent r obbery . Br ennan took c ustody of the
car tridg e ca ses from the K ent robbe ry on J anuar

y 24, 2006. Br ennan took the c artridg e ca se which see med most repre sentative of the Kent robbe ry and submitted it to an automated data base known as IVAS, which re turned a list of potential candidates f or compa rison. After

viewingthe 5 imag es fr om these ca

ndidates, B renna

n called f or the c artridg e ca ses re cover ed fr om the Colli ns shooting. B renna

n perf ormed a compar ison and conc luded the ca rtridg e ca ses in the Kent robber y wer e fire d by

the same w eapon a s the ca rtridg e ca ses fire d in the Colli ns shooting. Acc ordingto Bre nnan, his conc lusion was verifie d by a sec ond examiner. On cr oss-examination, Br ennan te stified that to his knowledg e, ther e has ne ver be en a dif fer ence of opinion betwee n two examiners in his office which war rante d outside review , althoug h there was a proce dure in the event of such disag ree ment. ¶ 33 Kent testified that on the e veningof June 1, 2005, or the ea rly morningof June 2, 2005, he and B enton wer e robbe d at gunpoint in the alley behind B enton' s house at 36 Ea st 101st Street. Ke nt also testified a man w ith a gun knocked on the window of his vehicle and instructed him to get out. Ke nt further testified he wa s standing at the left fr ont fende r of his automobile
Br ennan did not explain this acrony m in his t estimony
. 5 111-10-2476

when the ma

n instructed him to hand over all of his money

and to take of

f his clothes. Acc ordingto Kent, the man wor e a ski mask c overingonly his nose, chee ks and mouth so Kent could only

observe the top portion of his fac e, his hea d and hair . Kent testified, howe ver, the man was two f

eet a way from him when he pulled down his mask and said " I ' m that N*** Raamon, I

don’t g ive a f

***. Iwant eve ry

thing you g ot beca

use if you try

to run I ' m goingto kill y our a***." ¶ 34 Kent additionally

testified the man instructe d him to go into the g ara g e and la y on the floor, whe re B arton wa s located. A fter K ent went into the g ara g e, the man instruc ted him to go to the fenc e on the other

side of the a lley

and stated if K ent ra

n, he wa s g oing to kill him. Kent testified he then r an towar d Michig an Ave nue and he ard gunshots. ¶ 35 Kent re ported the c rime to the police. A ccor ding to Ke nt, on Febr uary 10, 2006, Detec tive Stover and a

nother de tective c ame to his reside nce to pr esent him with some photogr aphs to examine. At the time, Kent provided a tentative identification of defe ndant. On August 21, 2006, Kent went to the Ar ea 2 police headqua rters a nd viewed a

lineup wher e he identified def

endant a s the offe nder who robbed him at gunpoint. Kent also identified def endant in court. ¶ 36 Be nton testified for the de fense reg ardingthe Kent r obbery . Contrary to Kent' s testimony , Be nton testified she neve r obser ved the man r emove his mask. B enton was una ble to identify the per petrator of the Ke nt robbery and did not rec og nize defenda nt in court. ¶ 37 J oan Agnew ( Ag new) , an attorne y at the firm of

J ames M. Scanlon a

nd Associates – who was the g ener al counse l for the Chica g o Boa rd of Ele ction Commi ssioners – testified that
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cer tified voting r eg istration rec ords ar e re quired by law to be ke pt in the normal course of business. Ag new is able to determine vote r re g istrations for a static year and did so for 2004 a

nd 2006. Acc ordingto Ag new, the c orner of 71st Street and Champlain Ave nue touche s three differ ent pre cincts, so she re viewed r eg istration rec ords for the entire w ard. A g new testified that other re sidents of the wa

rd re g istered to vote ha

ve " Elliott " in pa

rt of their na

me: (1) Ve rn L ee Elliot at 7221 S outh L awr ence Avenue , born in 1937; (2) Elliot J ohnson at 7240 South Champlain Avenue , born in 1912; and (3) Elliot D. Cameron, Sr., at 7046 South Eberhar dt Avenue , born in 1972. ¶ 38 Wil liams testified she met def endant through her g odsister and knows him as " L ." Wil liams testified she lived at 71st Street and D amen Ave nue and sa w def endant on Oc tober 12, 2005. Acc ordingto Wi lliams, defenda nt telephoned be fore he ca me over . Def

endant a rrived at approximately

4 or 4:20 p.m. Wi lliams testified she and def endant watched tele vision. W illiams also g ave de fenda

nt a B and-A id for a c ut on his hand beca use she thoug ht it "looked nasty " sinc e it was still open but not bl eeding . Approxim ately 2 1⁄2 or 3 hours late r, def

endant r ece ived a telephone c all from his mother and the n he depa rted. ¶ 39 Patrick Steppe (Steppe ) also testified f or the de fense . Steppe was visiting his old neig hborhood and w alkingdown 72nd Street towa rd Champlain Avenue when he hear d gunshots and obser ved thre e individuals he did not rec og nize running out of the g ang way . Steppe testified he proc eede d down the g ang way and into a bac ky ard where he found Collins on the g round, shot and beaten. Steppe telephone d 911 and later spoke to the dete ctives at the sc ene, but wa s never contac ted by

the police ther eaf

ter.
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¶ 40 Dar

rin Crowder , a Chicag o police dete ctive, testified he lived at 7108 South Chaplain Avenue . Detec tive Crowder is active in his community and fr equently

had neighborhood kids over to play

with his sons. Detective Crowde r testified he had known de fenda nt for over

10 y ear s and ca lled him "L ." O n October 12, 2005, Crowder

was in his backyard a

nd hear d multipl e gunshots coming e ast from his re sidence , then observe d four tee nag ers r un down the alley . Detec tive Crowder rec og nized one of the tee nag ers to be E van Odoms (Odoms). L ater that day , Detec tive Crowder escor ted Odoms to the Are a 2 dete ctive division and Odoms provided a

statement, but was ne ver c ontacted a g ain. ¶ 41 Odoms testified he lived at 7128 South C hamplain Avenue . Odoms has bee n friends w ith defe ndant since he was seve n y ear s old and knows him as " L ." O doms also knew De tective Crowder , but not St eppe. O doms further te stified he has be en fr iends with Colli ns for a bout a y ear and a ha lf and introduce d him to defenda nt. ¶ 42 Odoms testified he a nd three friends w ere sitti ngon his porch at 3:45 p.m. on Octobe r 12, 2005, when he observe d Colli ns walkingacr oss the street with five or six men, but Colli ns did not acknowle dg e Odoms. Odoms also testified he went ac ross the stree t to talk to C ollins buthe turned a nd walked down a g ang way with the men behind him. Odoms further testified he only
rec og nized one other pe rson, " BigMike," whom he met through Colli ns but did not know persona lly
. ¶ 43 Acc ordingto Odoms, he followed Collins and the others down the g angway toward the backyard, but stopped be fore rea chingthe bac ky ard, be cause he obser ved Collins being phy sically

attacke d and B ig Mike holding a handgun. Odoms testified he turne d and ra n. After
141-10-2476

hear ing gunshots, Odoms ran throug h the g ang way by his house, into the alley

wher e he notice d Detec tive Crowder , and then c ontinued down a f ew house s to a frie nd’s house. ¶ 44 Hours later , Odoms returne d to his block and conve rsed with De tective Crowde r. Odoms and De tective Crowde r then we nt to the police station on 111th St ree t and Ellis Avenue, whe re Odoms spoke with Detec tives Stover and Murphy . Odoms testified he provide d a stateme nt reg ardingwhat he obse rved a nd what happe ned, while the de tectives took notes. Ac cordingto Odoms, he wa s able to obser ve most of the yard a

nd all the men for

a couple seconds but the detec tives and Gillespie wa nted him to say

he could only

see a portion of the yard. O doms testified he did not see defe ndant in the bac kyard. ¶ 45 Approxim ately

a year later, O doms met with the same detec tives and Assistant State' s Attorney (ASA) Ale x andria

Gillespie (Gillespie) to pr ovide another statement. Odoms testified ASA Gillespie transc ribed Odom’s state ment, prese nted it to him for his review, a nd allowed him to make chang es bef

ore he signe d it. Odoms did notrec all Gillespie takinga photog raph of him and him signingit, but he identified himself in a picture and his signature upon the photo. Odoms additionally

testified he wa s rea lly

scar ed of the detec tives beca use they wer e intimi dating
. ¶ 46 Acc ordingto Odoms, he informed de tectives a bout BigMike at both meeting s, but Odoms acknow ledg ed the state ment memorialized by Gillespie did not refe r to BigMike. Odoms was unable to identify Big Mike in the arr ay

of photog raphs the de tectives provide d. Odoms testified that afte r the sec ond meetingwith the detec tives, he wa s never contac ted.

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¶ 47 Detec tive Stover testified in rebuttal that he interviewe d Odoms. Acc ordingto Detec tive Stover, Odoms never

wrote a ny thing down a

nd handed it to him, nor did Detec tive Stover pressure Odoms to say

any thing. De tective Stover a lso testified Odoms informed him duringthe initial int ervie w that he ha d suspected Collins burg larized his house and wa s g oing to c onfront him with thi s information. Dete ctive Stover fur ther testified O doms informed him he obser ved a "B ig Mike " or

"F at Mike" holding a

black ha ndgun. Detec tive Stover conduc ted a se arc h for a ll "Mike s" in the a

rea on the Chicag o police depa rtment databa se and submitted the photos based on Odoms' information, but Odoms did not identify any photo as that of the shooter . After Detec tive Stover confr onted Odoms with defe ndant' s statement of be ing a t the scene , Odoms "put his head down a

nd said, well, I

don’t know, I

didn’t see him there ." ¶ 48 ASA Gillespie testified she inter viewed O doms on Aug ust 28, 2006, and memorialized his statement reg arding

the Collins s hooting. B efor e ASA Gillespie took his statement, she wa s alone with Odoms and inquire d whether he had a ny complaints about the wa

y he wa s treate d by the police. Ac cordingto ASA Gillespie, Odoms replied he had bee n trea ted well. Af

ter she memorialized his statement, ASA Gillespie allowed Odoms to re view and c orre ct the stateme nt, had him initial each of

the four pa g es and sig n the statement. ASA Gillespie testified she then took a photog raph of

Odoms, marked the date a nd time thereon a

nd had it signe d by

herse lf, a detec tive and Odoms. ASA Gillespie fur ther testified O doms never sa id he observe d a man named B ig Mike with a handgun or fire a we apon. ¶ 49 Followingclosingarguments and the jury instructions, the jury

deliberated and f

ound defe ndant guilty

of first degree murder. T he jury also found the State pr oved def endant
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persona lly

discharg ed a f

irea rm that proxim ately

cause d Colli ns' death. On January 4, 2010, defe ndant filed a

posttrial motion for a new tr ial. On J uly 13, 2010, followinga hea ring , the trial court de nied def

endant’ s posttrial moti on and proc eede d to a sentenc ing he aring . After hear ing evidenc e in ag g ravation and mitigation of the of fense , the trial judg e sente nced de fenda nt to 48 y ear s in the I llinois Depa

rtment of Corre ctions. On August 3, 2010, defenda nt filed a motion to
rec onsider his sentenc e, which the trial judg e denie d the same da y . Def endant a lso filed a timely notice of a

ppeal on August 3, 2010. ¶ 50 DI SCUS SI ON ¶ 51 On appe al, def

endant a rgues: (1) the admission of the victim's state ment made pr ior to his death violated de fenda

nt's right to conf

ront the witnesses a g ainst him; (2) the trial judg e should have e x cluded the toolmar k and fire arms identification evidence as lac king a scientific ba sis; (3) the trial cour

t should have suppre ssed testimony reg ardingdefe ndant' s statement made in the lockup; (4) the tr ial court e rre d in admitting def endant' s statement that he sold bullets to the victim; and (5) the jury

venire was improper ly

questioned during voir dire in violation of I llinois Supreme Court Rule 431(b) ( eff . May 1, 2007). We addre ss defe ndant' s arg uments in turn. ¶ 52 The Admission of the Victim' s Statements ¶ 53 Def

endant f irst argues the trial c ourt' s decision to allow par amedics Senne tt and Phill ips to testify reg ardingColli ns' statements that " Elliot" shot him and Elliotwas fr om "71st and Champlain" a

nd shot him over a stolen gun violated def endant' s constitutional right to confr ont the witnesses a g ainst him. S ee Crawf ord , 541 U.S. at 68. Our supre me cour t has direc ted that, when r eviewingthe admissibilit y of out-of- court stateme nts into evidence, w e must first

171-10-2476

deter mine whether

those statements " ' pass[ ] muster as a n evidentiar

y matter.' " People v

. Melc hor , 226 I ll. 2d 24, 34 (2007) (quoting In re E.H

. , 224 I ll. 2d 172, 179 (2006)). Only wher e the statements ar e admissible as a n evidentiar

y matter may

this court consider " ' constitutional objections – including Crawf ord-base d confr ontation clause c laims.' " Melc hor , 226 I ll. 2d at 34 (quoting In re E.H

. , 224 I ll. 2d at 179-80). This appr oach is c onsistent with the ge nera l rule of avoidingconstitutional questions where the c ase c an be de cided on nonc onstitut ional g rounds. Melc hor , 226 I ll. 2d at 34. Accor dingly , we f irst consider whe ther Senne tt's testimony reg arding Colli ns' statement wa s admissible as an evide ntiary matter. ¶ 54 In this case, the tr ial court a dmitted the testimony as to Collins ' statements as dying decla rations. " A dying de clar ation qualifies as a hear say exception beca

use it is considered trustworthy

wher e the likelihood of fa brication is m inimal due to the decla rant' s belief that de ath is imm inent." People v . Graham , 392 I ll. App. 3d 1001, 1006 (2009). A state ment may be admitted as a dy

ing de clar ation when it is shown beyond a re asonable doubt, based upon a n examination of the totality of the fa cts and c ircumstance s surroundingthe dec laration, that: "(1) the dec laration pertains to the ca use or c ircumstance of the homicide; (2) the dec lara nt must believe that death is imminent; and (3) the de clar ant must possess mental fac ulties sufficient to g ive an a ccur ate state ment about the cir cumstance s of the homicide." People v . Georgak apoulos , 303 I ll. App. 3d 1001, 1009 (1999). A tria l court' s decision to admit a statement pursua nt to the dying de clar ation exception to the hear say rule is af forde d some defe renc e and a revie wingcourt will not overturn that dec ision unless itis ag ainst the manifest we ight of the evidenc e. People v

. Hatchett , 397 I ll. App. 3d 495, 502 (2009). A tria l court' s finding is a g ainst the manifest we ight
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of the e vidence if the opposite conc lusion is clearly evident. People v . Stiff

, 391 I ll. App. 3d 494, 499 (2009). ¶ 55 In this case, a fter Senne tt informed Collins he was g oing to die, Collins identified " Elliot" from " 71st and Champlain" a s the shooter a nd stated Elliot accuse d him of stealinga gun. Sennett and Phillips testified Collins was alert, able to respond to questions, and wa s not administered pa inkillers. Defe ndant does not dispute the stateme nts were dying de clar ations. Given this rec ord, we conclude the trial cour t's r uling the statements wer e admissible as dying decla rations was not a g ainst the manifest we ight of the evidenc e. Thus, we turn to consider whether the admission of the dying de clar ations violated defe ndant' s constitutional right to confr ont the witnesses ag ainst him. ¶ 56 The c onfrontation cla use of the sixth amendment to the United States Constit ution provides that " [i ]n all criminal prosecutions, the ac cused sha ll enjoy the rig ht *** to be confr onted with the witnesses a g ainst him." U.S. Const., amend. VI . This part of the sixth amendment a

pplies to the states throug h the fourte enth amendme nt. People v . Stechly , 225 I ll. 2d 246, 264 (2007). The issue of whe ther de fenda nt's sixth amendment confrontation rights we re violated involves a que stion of law, which we revie w de novo
. People v . Lovejoy , 235 I ll. 2d 97, 141-42 (2009)
. ¶ 57 In Crawf

ord, the United States Supreme Court he ld that out-of-c ourt statements that ar e testimonial in nature ar e bar red by the conf rontation clause , reg ardle ss of whethe r the trial c ourt finds the statements to be r eliable, unless the w itness is unavailable a nd the def

endant ha d a prior opportunity

for c ross-examination. Crawf ord , 541 U.S. at 68. The Crawf ord Court, however , 191-10-2476

indicated that dy

ing de clar ations may

be an historica l exception to the rule ag ainst admission of hear say testimony : "T he one de viation we have found involves dying de clar ations. The existence of that exception as a g ener al rule of criminal hea

rsay law ca nnot be disputed. [C itations.] Although ma

ny dying de clar ations may

not be testimonial, there is authority for a dmitti ng even those that clea

rly are . [C itations.] We need not dec ide in this case whe ther the Six th Amendment incorpor ates a n exception for testimonial dying de clar ations. I f this exception must be acc epted on historica l gr ounds, it is sui generis ." Id . at 56 n.6 (citations omitted). The United States Supre me Court rec og nized this long- standingexception to the exclusi on of testimonial dy ing de clar ation statements ag ain in Giles v. California , 554 U.S. 353, 358 (2008) (" We have pr eviously

acknow ledg ed that two for ms of testimonial statements were admitted at common law eve n though the y wer e unconf

ronted. [Cit ation.] The first of these w ere decla rations made by

a spea ker who was both on the brink of death a nd awa re that he was dy

ing. [C itation.] ") . The United States Supre me Court, howeve r, has not dec ided the issue. ¶ 58 This court has he ld the admission of dying de clar ations that are testimonial in nature does not violate the conf

rontation clause
. People v . Graham , 392 I ll. App. 3d 1001, 1008 (2009); People v . Gilmore , 356 I ll. App. 3d 1023, 1033 (2005). This cour t relied not only

on the dicta from Crawf

ord and Giles , but also the California Supre me Court' s decision in People v

. Monterroso , 101 P.3d 956 (Cal. 2004). The Monterroso court re asoned:

201-10-2476

"[I ]f, as Crawf

ord teac hes, the c onfrontation cla use ' is most naturally

rea d as re fer ence to the rig ht of confr ontation at common law, admitting only those exceptions established at the time of the founding ' [citation] , it follows that the common law pedig ree of the exception for dying de clar ations poses no conflict with the Six th Amendment." Monterroso , 101 P.3d at 972 (quoting Crawf ord , 541 U.S. at 54). Def endant sug g ests Graham and Gilmore are incompatible with the conf rontation clause , but the rationale this court has adopte d from Monterroso explains why defe ndant' s argument fails. Acc ording ly , in adher ence to this court's pr ece dent, we c onclude the dy ing de clar ations were admissible in this case and the a dmission of those statements did not viol ate the sixth amendment, e ven if those state ments were testimonial. ¶ 59 Admission of Toolmark and F irea rms I dentification Evidence ¶ 60 Def

endant ne x t argues the trial c ourt err ed whe n it denied his motion in limine to exclude expert testimony

from fire arms examiners that the c artridg e ca ses found at the scene of Collins' shooting we re f

ired fr om the same gun used in the Ke nt robbery . Def endant c ontends toolmark and fire arms identification analy sis is notg ener ally acc epted in the r eleva

nt scientific community and thus the expert testimony should have be en excluded under Frye v . United States , 293 F. 1013, 1014 (D.C. Cir. 1923). Alterna tively , defe ndant ar gues that the c ourt should have conducte d a Fryehear ing to de termine whe ther microsc opic fire arms compa rison is a g ener ally
acc epted tec hnique within the rele vant scientific c ommunity
. ¶ 61 The a dmission of scientific testimony in I llinois is gove rned by the Frye"g ener al
acc eptanc e" test. See People v . Caballes , 221 I ll. 2d 282, 334 n.1 (2006). Under Frye , 211-10-2476

"sc ientific evide nce is a dmissibl e at tria l only if the methodolog y

or scientific principle upon which the opinion is based is ' sufficie ntly established to have g ained g ener al ac cepta nce in the particula r field in which it belong s.' " In re Commitme nt of Simons , 213 I ll. 2d 523, 529-30 (2004) ( quoting Frye , 293 F. at 1014). The Fryestandard is limited to scientific methodolog y that is considere d "ne w" or " novel." People v . McKown ( McKown I

), 226 I ll. 2d 245, 257 (2007). Gene ral a cce ptance of a me thodology "doe s not require that the methodolog y *** be ac cepte d by unanimity , consensus, or e ven a ma jority of experts." Simons , 213 I ll. 2d at 530; Donaldson v. Central Illinois Public Servic e Co. , 199 I ll. 2d 63, 76-77 (2002), abrogated on other grounds by Simons , 213 I ll. 2d at 530. Under Frye , a cour t inquires as to the g ener al ac cepta nce of a methodology , not the particula r conc lusion reac hed by

an examiner or the application of the methodology

in a par ticular c ase. McKown I

, 226 I ll. 2d at 255; Donaldson , 199 I ll. 2d at 77. ¶ 62 Our standa

rd of r eview is de novo
. Simons , 213 I ll. 2d at 530-31. " Under the de novo standard of

revie w, the re viewingcourt doe s not need to def er to the tria l court' s judgme nt or
rea soning." People v . Anderson , 2012 I LApp (1st) 103288, ¶ 34. " De nov o revie w is completely independe nt of the trial cour t's de cision." Id . "I

n conductingsuch de novo revie w, the re viewing court may consider not only

the trial cour

t rec ord but also, wher e appr opriate, sour ces outside the
rec ord, includingleg al and sc ientific ar ticles, as we ll as court opinions from other jur isdictions." Simons , 213 I ll. 2d at 531. ¶ 63 I s Fire arms I dentification Analy sis Scientific? ¶ 64 As a thre shold matter, we obse rve that Fryeapplies only to scientific evide nce. McKown I , 226 I ll. 2d at 254. I n this case, the tr ial judge denied de fenda nt's motion for a Fryehear ing,
221-10-2476

rulinga hea

ringwas unne cessa

ry beca use the fir ear

ms comparison is perf

ormed visually

and the methodology

was not a sc ientific proc ess. Def endant on a

ppeal a rgues the he aring

was re quired. ¶ 65 In McKown I

, a ca se we consider in f

urther de tail below, our supre me cour t considere d whether horizontal ga ze ny stag mus (HGN) testing w as prope rly admitted without a Fryehear ing. Id . at 247. " The HG

N test purporte dly

measure s ny stag mus, which has bee n define d as an abnorma l and involuntary rapid moveme nt of the eyeballs up and down, or more c ommonly , side to side." Id . at 248. " Be cause alcohol consumption ca n cause ny stag mus, police offic ers have been tr ained to che ck a pe rson' s ey e movements whe n attempting to de termine if a driver ha s been dr iving while impair ed by alcohol." Id . at 249. ¶ 66 The McKown I

court a ddresse d the question of whe ther HG N testingis scientific as a threshold issue. Id . at 254. The c ourt observe d that some jurisdictions have held that HG N testing is not scientific, but the ma jority of jurisdictions addre ssing the issue ha ve held HG

N testing to be scientific be cause it is based on a scie ntific principle whic h is not common knowledg e, i.e. , consumption of alcohol ca uses the ty

pe of ny stag mus measure d by the HGN te st. See id . at 255 (a

nd case s cited there in). The McKown I court a g ree d with the majority view, rulingHGN testingis scientific bec ause the results of an H GN test ar e mea ningle ss to the
aver ag e per son without ex pert interpr etation. Id . at 256-57. ¶ 67 In this case, ne ither def endant nor

the State has sug g ested toolmark a nd firea rms identification mater ials are understanda ble to the lay

person a bsent expert testimony
. Fur thermore , as our a

naly sis of this is sue will demonstrate, nume rous cour ts–including those

231-10-2476

skeptical of the methodology –have a naly zed the subject as one involving scie ntific or tec hnical evidenc e. Ac cording ly , we sha ll do the same in this case. 6 ¶ 68 Novelty ¶ 69 We nextconsider the question of novelty . A deter mination under " the Fryetest is
nece ssary only if the scientific principle, tec hnique or test off ere d by the expert to support his or her c onclusion is 'ne w' or ' novel.' " People v . McKown ( McKown II

), 236 I ll. 2d 278, 282-83 (2010); see McKown I

, 226 I ll. 2d at 257; Donaldson , 199 I ll. 2d at 78-79. Whil e re cog nizi ng that "a ' new' or ' novel' scientific tec hnique is not alway s easy to identify , espec ially

in light of constant scientific advanc es in our moder n era ," our

supreme c ourt has instructed that ge nera lly a "sc ientific tec hnique is ' new' or ' novel' if it is 'orig inal or striking ' or does ' not resembl[e] something f

ormerly known or used.' " Donaldson , 199 I ll. 2d at 79 (quoting Webster ' s Third New I nternational Dictionary

1546 (1993))
. ¶ 70 The State c ontends we ma y end our inquiry

here beca

use similar expert firea

rms testimony has bee n g ener ally

admissible in I llinois courts since People v . Fisher , 340 I ll. 216, 240-41 (1930) . Indeed, the State maintains the trial cour t and this court ar e both bound by Fisher as controllingauthority . Def endant, r elying upon McKown I , argues that latent print As this court may

aff irm the trial cour

t's r ulings on the a dmission of evidence for a ny 6

rea son found in the re cord ( Donaldson v. Central Illinois Publi c Serv ice Co. , 313 I ll. App. 3d 1061, 1075 (2000)) and our standa rd of r eview is de novo ( Simons , 213 I ll. 2d at 530-31), the trial judg e' s ruling on this point is not reversible e rror for the r easons se t forth in this opini on.

241-10-2476

identification should be dee med " novel" beca use this ty

pe of micr oscopic fir ear

ms comparison has longbeen use d by

firea rms examiners, but the methodology , like HGN testing , has bee n subject to rec ent cour

t challeng es and ha s not been subjec t to a Fryehear ing in I llinois . See McKown I

, 226 I ll. 2d at 258. ¶ 71 Neither Fisher

nor McKown I

provides a de finitive answer to the question of novelty in this case. Fisher

addre ssed the admissibility of this ty pe of f irea rms examination, but di d not purport to apply Fryeor dete rmine whe ther the me thodology was g ener ally

acc epted. See Fisher , 340 I ll. at 237-41. The McKown I court did not prec isely

indicate whe ther it found HGN testing w as novel be cause there was a history of leg al cha lleng es or be cause the cour ts addressing those cha lleng es had r eac hed diffe rent c onclusions reg ardingthe g ener al ac cepta nce of HGN testing. See McKown I

, 226 I ll. 2d at 257. In any event, we will assume for the sa ke of a rgument the ballistic comparison may be " novel," and conside r the a pplication of the Fryeand its prog eny to the admission of ballistics evidence in I llinois . See McKown I , 226 I ll. 2d at 254. ¶ 72 J udicial Notice of Gene ral Ac cepta

nce ¶ 73 "Acourt may

deter mine the g ener al ac cepta

nce of a scie ntific principle or

methodology

in either of two way s: (1) base d on the re sults of a Fryehearing; or (2) by takingjudicial notice of unequivoca l and undisputed prior judicial de cisions or technic al writing s on the subject." McKown I

, 226 I ll. 2d at 254. In this case, the trial court de nied def endant' s motion for a Frye hear ing. A ccor dingly , we will consider whether an I llinois court may

take judicial notice of unequivoca l and undisputed prior judicial de cisions or technic al writing s on the subject without conductinga Fryehear ing.
251-10-2476

¶ 74 Initially , we r eview in some de tail two rec ent opinions from our supre me cour t reg arding judicial notice of g ener al ac cepta nce: Simons , which rule d judicial notice of g ener al ac cepta nce was prope r, and McKown I , which rule d a Fryehear ing w as re quired. ¶ 75 In Simons , our supre me cour t considere d whether

the trial cour

t properly took judicial notice of the g ener al ac cepta nce of actua rial risk asse ssment to assess sexually violent offende rs for a risk of re cidivism. Simons , 213 I ll. 2d at 533. The Simons court, notingthis court was "sha rply divided" on the question ( id .), explained that " experts in at least 19 other state s rely upon actua

rial risk asse ssment in forming the ir opinions on sex offe nders' risk of re cidivism" ( id
. at 535-36). O ur supre me cour t concluded tha

t "g ener al ac cepta

nce of actua rial risk asse ssment has bee n thoroug hly

litigated in se vera l states." Id . at 537. Moreove r, the Simons court wa s "una ble to identify

any state outside of I llinois in which expert testimony based upon a ctuarial risk assessment wa s deeme d inadmissible on the question of sex offender rec idivism ." Id . at 539. The c ourt furthe r obser

ved that seve ral jurisdictions mandated a ctuar ial risk assessment by statute or re gulation and " note[d] that the ac ademic liter ature contains many article s confirming the g ener al ac cepta

nce of actua rial risk asse ssment by

profe ssionals who assess sexually violent offe nders f

or risk of r ecidivism." Id . at 541. Ultimately , the Simons court c oncluded that "[t]aking all of this tog ether –the ca se law, the statutory law, and the aca demic literature," it was "mor e than c onvinced that a ctuarial risk assessment has g ained g ener al ac cepta nce in the psy cholog ical and psy

chiatric communities." Id . at 543. ¶ 76 In contra st, inMcKown I , as pre viously

noted, the issue on appe al was whether the trial court prope rly

admitted the re sults of HGN testingwithout first holding a Fryehearing.
261-10-2476

McKown I

, 226 I ll. 2d at 247-48. Reg ardingthe issue of g ener al ac cepta nce, the McKown I

court discussed diverg ent dec isions of the I llinois Appellate Court. See id . at 263-65. The court a lso surveyed appe llate cour

t decisions from for eig n jurisdictions and found that they wer e " as var ied as the states that have made them" r eg ardingthe g ener al ac cepta nce of HGN testing
. Id . at 272. The c ourt conc luded that these de cisions did "not pre sent the kind of unequivoc al or undisputed viewpoint on the issue upon which a court c an take judicial notice." Id
. ¶ 77 Reg ardingthe State' s argument that the cour t could take judicial notice of the g ener al
acc eptanc e of H GN testing"ba sed on the tec hnical wr itings on the subjec t," the c ourt deter mined it could "c onsider not only the re cord, but a lso 'sour ces outside the r ecor d, including le g al and scientific a

rticles, as w ell as cour

t opinions from other jurisdictions.' " Id . (quoting Simons , 213 I ll. 2d at 531). The c ourt observe d "H GN testingappea rs to have a s many

critics as it does champions." Id . at 275. Withoutan " unequivoca l or undisputed viewpoint" f rom the scientific literature , the cour

t decided it could not " take judicial notice of the g ener al ac cepta nce of the HGN test a s a re liable indicator of alcohol impairment ba sed on these te chnica l writings." Id
. ¶ 78 Simons and McKown I thus instructs a court should examine the unanimity or division of I llinois courts on the a dmissibi lity of a ty pe of sc ientific evide nce, the n examine the unanimity or division of other jurisdictions on the question, with an emphasis on whethe r the issue ha s been thoroug hly

litigated. T he cour

t may also consider

the unanimity

or division of opinion in t he scientific a

nd technica l literature on the subject. With t hese principles in mind, we turn to consider the admissibili ty of toolmark and f

irea rms identification evide nce. ¶ 79 Gene ral Ac cepta nce of Toolmark and F irea

rms I dentification
271-10-2476

¶ 80 As previously

noted, expert fire arms testimony has bee n g ener ally

admissible in I llinois courts for deca des. Fisher , 340 I ll. at 240-41. Def endant doe s not identify

any I llinois case law castingdoubt on the g ener al admissibilit y of such testimony . Unlike McKown I , there is no split of authority

in I llinois on this iss ue. ¶ 81 Def

endant r elies upon three fede ral district cour t decisions addre ssing c halleng es to toolmark and fir ear

ms identification methodology : United States v. Gre en , 405 F. Supp. 2d 104 (D. Mass. 2005) ; United States v. Montiero , 407 F. Supp. 2d 351, 365-72 (D . Mass. 2006); and United States v. Gly nn , 578 F. Supp. 2d 567 (S.D.N.Y. 2008) . None of these c ases ultimately support excluding microsc opic fire arms compa rison evidenc e on the ba sis of Frye
. ¶ 82 In Gree n , the fire arms expert re peate dly conce ded that he r elied on his subjective judgme nt and " [t ]here we re no r efe renc e mater ials of any specific ity , no national or e ven loca l databa se on which he relied." Id . at 107. The tria l judge questioned the re liability of the e x pert' s methodology
. Id . at 119-20. Indeed, the judge opined: "T he more courts admit this ty pe of 7 toolmark evidenc e without requiringdocumentation, prof iciency testing, or

evidenc e of reliability , the more sloppy prac tices will endure ; we should requir e more ." Id . at 109. Yet the judge in Gree n allowed the f irea rms testimony , based pr imarily on the unanimous judicial
acc eptanc e of suc h testimony , but limi ted the expert to descr ibing the similarities in the shell casing s he obser

ved and ba

rre d the expert from opiningthe ca sings c ome from a specific pistol

In contra st, pursuant to Frye , I llinois courts ar e not conc erne d with the application of 7 the methodolog y

in a par ticular c ase. McKown I

, 226 I ll. 2d at 255; Donaldson , 199 I ll. 2d at 77. 281-10-2476

"to the e x clusion of eve ry other fir ear

m in the world." (Interna l quotation marks omitted.) Id . at 124. ¶ 83 Simi larly , in Montiero , the judg e found the underly ing pr inciples behind fire arm identification may

be scie ntifically

valid, but “there is no reliable *** sc ientific methodology which will curr ently

permit the expert to testify that [a casingand a pa

rticular f irea rm are ] a

' match' to an absolute c erta inty , or to an a rbitrar y deg ree of statistical ce rtainty ." Montiero , 407 F. Supp. 2d at 372. The Montiero judge found the witness qua lified, but his testim ony was not adequately

documented or

subject to pee r re view. Id . at 374. The judg e allowe d Montiero' s motion to ex clude ba llist ics without prejudice. Id . at 375. I n g ener al, the Montiero judge found the methodolog y

of fire arms identification is sufficiently reliable ( id . at 372) a

nd would allow a qualified e x aminer who has docume nted and ha d a sec ond qualified e x aminer ve rify her r esults to testify based on those r esults that a ca rtridg e ca se matche s a par ticular fir ear

m to a rea sonable deg ree of ballistic cer

tainty ( id . at 375). The judge would bar te stimony "that there is a match to an exact statistical ce rtainty ." Id
. ¶ 84 L ikewise, in Glynn , the district court judg e wa s conce rned w ith the deg ree of subjectivity involved in firea

rms identification. Glynn , 578 F. Supp. 2d at 572. The Glynn judge explained that while other f

orms of expert testimony , including me dical expert testimony , may involve subjective judg ments, "ba llist ics compar ison lacks def ining standa

rds to a degree that exceeds most other kinds of fore nsic expertise." Id . at 574. Thus, the judg e conc luded " ballistics examination not onl y

lacks the r igor

of scienc e but suffe rs from greater unc erta inty than many other kinds of for ensic e vidence ." Id . Neve rtheless, the judg e conc luded the " methodology has
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g arne red suf

ficient e mpirical support as to wa rra nt its admiss ibilit y ." Id . Acc ording ly , the judg e ruled the ba llist ics evidenc e wa s admissible, although the expert would be limited to testify ing matches w ere "mor e likely than not." See id . at 574-75. ¶ 85 There are a number of other r eporte d fede ral district cour t decisions involving similar challeng es. See, e.g. , United States v. Ote ro , 849 F. Supp. 2d 425 (D.N .J . 2012); United States v. W illock, 696 F. Supp. 2d 536 (D. Md. 2010) ; United States v. Taylor , 663 F. Supp. 2d 1170 (D.N.M. 2009) . A number of these c ourts eng ag ed in leng thy and deta iled hear ings, involving multipl e witness and the prese ntation of documenta ry evidenc e. Otero , 849 F. Supp. 2d at 429 (three -day

hear ing at which the par

ties "submitted var ious documents") ; Taylor , 663 F. Supp. 2d at 1171 (two-da

y hear ing) ; Montiero , 407 F. Supp. 2d at 355 (six-day evidentiar

y hear ing a nd "e x tensive docume ntary

rec ord re plete with photog raphs, de monstratives, and journa l articles" ). In none of the se judicial dec isions–including those spec ifically cited by defe ndant in this appea l–did a court rule traditional microscopic firea rms compar ison testimony was g ener ally inadmissible. ¶ 86 Of c ourse, in fe dera l courts, admission of expert testimony is gove rned by

the standar ds set forth in Daubert v. M

errell Dow Pharmace uticals, Inc. , 509 U.S. 579 (1993), whe rea s I llinois adher es to the Fryetest. Yet in Daubert , the United States Supreme Court a ffirme d the continued re levanc e of whether the technique at issue is g ener ally acc epted within the scie ntific community
. Id . at 594. " Widespread a cce ptance can be an important fa ctor in rulingparticula r evidenc e admissible, and ' a known tec hnique which ha s been a ble to attrac t only

minimal support

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within the community ' [citation] may proper ly be viewe d with skepticism." Id . (quoting United States v. Downing , 753 F.2d 1224, 1238 ( 3d Cir. 1985)). ¶ 87 Thus, some of the a fore mentioned fe dera l courts have specific ally mentioned or discussed the issue of g ener al ac cepta nce in r uling on r ece nt challeng es to toolmark and f irea rms identification ana ly sis. For e x ample, in Otero , the cour t observed the AFT E theory of fire arms and toolmark identification is widely acc epted in the f

orensic c ommunity

and spec ifically

in the community

of fire arm a

nd toolmark examiners. Otero , 849 F. Supp. 2d at 435. The W illock court similarly

found the AF TE theory

of fire arms-r elated toolmar k identification has be en "g ener ally

acc epted within the fie ld of toolmark examiners." W illock, 696 F. Supp. 2d at 571. In Taylor , the cour

t found the use of

pattern matchingunderly ing the AFT E theory

"is g ener ally
acc epted a

mong f irea rms examiners in the field." Taylor , 663 F. Supp. 2d at 1178. The 8 Montiero court found it " clea r that the c ommunity

of fire arm a

nd toolmark examiners ac cepts the
curr ent identification methodology as re liable" and " the community of toolmark examiners see ms virtually united in their ac cepta

nce of the cur rent tec hnique." Montiero , 407 F. Supp. 2d at 372. ¶ 88 Neither

defe ndant nor the State a ddresse s the ca se law f rom other state s adher ing to the Fryetest, but our revie w of such c ases r evea ls the results are the same a s those in the fede ral courts. F or example, in Fleming v. State , 1 A.3d 572 (Md. Ct. Spec. App. 2010), the trial court held a thre e-da

y Fryehear ing on f

irea rms toolmark identification and c oncluded the tr aditional
The trial c ourt also found a newe r method of pattern matching , involving conse cutively 8 matchingstriae, wa s g ener ally acc epted among f

irea rms examiners Taylor , 663 F. Supp. 2d at 1178. 311-10-2476

compar ative microsc ope matchingtechnique w as admissible. Id . at 575. On appe al, the 9 Fleming court rule d that even if

the admission of the evide nce w as not harmless e rror , the appellate court would hold the trial c ourt did not err in a dmitti ngsuch evide nce. Id . at 585. The court c oncluded, notwithstandingthe cur rent de bate ove r the issue, c ourts have c onsistently found the tra ditional method of firea rms toolmark ana ly sis to be ge nera lly acc epted within the scientific c ommunity

and re liable. Id . at 590. ¶ 89 Simi larly , in Commonwealth v. W hitacre , 878 A.2d 96 (Pa. Super. Ct. 2005), the Super ior Court of Pennsylvania af

firmed the tr ial judge ' s decision to admit comparison microsc ope analy sis (albeit followinga more cursor y hear ing tha

n in Fleming

), rulingthe methodolog y was g ener ally acc epted within the scie ntific community consisting of

firea rms experts and a number of sig nificant g overnme ntal bodies within and without Pennsylvania. Id . at 101-02. In Jones v

. United States , 27 A.3d 1130 (D.C. 2011), the District of Columbia Court of Appea ls affirme d the trial judg e' s decision to not conduct a Fryehear ing r eg ardingfirea rms pattern matching , concludingnone of the evidenc e prof fer ed sug g ested the me thodology was no long er g ener ally
acc epted. Id . at 1138. In People v . Givens , 912 N.Y.S.2d 855 (N.Y. Sup. Ct. 2010), the trial judge , afte r re viewingthe ca se law, sc holarly repor ts and article s, denied the de fense reque st to exclude firea

rms and toolmark identification or conduct a Fryehear ing, ba sed primar ily on the unanimous judicial acc eptanc e of suc h testimony
. Id . at 857.
The trial c ourt, howeve r, excluded testimony based on the consec utively matching 9 striae tec hnique, findingit was not g ener ally acc epted. Fleming , 1 A.3d at 575-76. The
consec utively

matchingstriae tec hnique is not at issue in this appeal. 321-10-2476

¶ 90 Def

endant a lso relies upon the c riticism of the methodolog y found in scholar ly

repor ts and ar ticles. National Rese arc h Council, Comm ittee on I dentifying the Nee ds of the F orensic Science s Communi ty et al. , Strengthening Forensic Sc iencein the United States: A Path Forward (2009), available at

http:// www.na

p.edu/catalog .php? rec ord_id=12589 (he reina fter NRC Report); Richard Grzy bowski et al. , Firearm/Toolmark Identification: Passing the Reliability Test Under Federal and State Ev identiary Standards , 35 AFT E J . 209, 213 (2003). Fe dera l and state c ourts considering these mate rials neve rtheless have found micr oscopic firea rms compar ison methodology to be g ener ally

acc epted a

nd declined to e x clude the ty pe of testimony at issue in this case. See , e.g. , Otero , 849 F. Supp. 2d at 427, 430, 438 (c iting NRC Report, et al. , supra at 150, and Grzy bowski, et al. , supra at 211); W illock, 696 F. Supp. 2d at 555, 571 (NRC Report); Taylor , 663 F. Supp. 2d at 1177-78,1180 ( NRC Report); Monteiro , 407 F. Supp. 2d at 362-63, 367, 372 ( Grzy bowski et al. , supra at 213); Jones , 27 A.3d at 1137 n.7 (NRC Report); Fleming , 1 A.3d at 104, 106 (N RC R eport). I n Glynn , the judg e re lied in part on a diffe rent NRC repor

t to conclude the " methodology has g arne red suf

ficient e mpirical support as to warr ant its admissibi lity ." Glynn , 578 F. Supp. 2d at 574 (c iting Da niel L . Cork et al. , Ballisti cs Imaging

30-46 (2008) ). Althoug h the scholar ly materia ls cited by

defe ndant and the defe ndants in other ca ses may raise substantial c riticisms of the methodology at issue in this case, no court ha s found these c ritiques sufficie nt to conclude the me thodology is no longe r g ener ally
acc epted. ¶ 91 In short, in rec ent y ear s, fede ral a nd state cour

ts have ha d occa sion to revisit the admission of expert testimony based on toolmark a

nd firea rms identification methodolog y . Such
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testimony has bee n the subject of le ng thy and deta iled hear ings, a

nd measure d ag ainst the standards of

both Fryeand Daubert . Courts have c onsidered sc holarly criticism of the methodology , and occ asionally place d limit ations on the opinions ex perts may offe r base d on the methodology . Yet the judicial de cisions uniformly conclude toolmark and fir ear ms identification is ge nera lly

acc epted a

nd admissible at trial. Acc ording ly , we c onclude the trial court did not err in ruling the testimony

in this case wa s admissible and did not require a Fryehear ing, particula rly wher e the tria l judge barr ed the witnesse s from testifying the ir opinions were "w ithin
a re asonable deg ree of scientific cer tainty ." ¶ 92 Other- Crimes Evidence ¶ 93 Def

endant f urther a rgues the trial c ourt err ed in admitting e vidence that defe ndant stated he sold bullets to Col lins. Defenda nt maintains the testimony was irr eleva

nt, other-c rimes evidenc e. Unde r the c ommon law, other-c rimes evidenc e g ener ally is inadmissi ble if off

ere d only to demonstrate the de fenda nt's pr opensity

to commit the charg ed cr ime. People v . Donoho , 204 I ll. 2d 159, 169 (2003). Evidenc e re g ardingother c rimes g ener ally is admissibl e if off

ere d to prove a ny rele vant fa ct other tha

n propensity
. Id . at 170. For example, such other- acts e vidence is admissibl e to show: " ' modus operandi , motive, knowledg e, intent, abse nce of mistake or ac cident, [the] defe ndant' s state of mind, absenc e of a n innocent mind frame or the pr esenc e of c riminal intent, circumstanc es or c ontextof [the] defe ndant' s arr est, place ment of [the] defe ndant in prox imity

to the time and place of the c rime, identification of the wea pon used in a crime, c onsciousness of guilt, to s how a c ommon design, sc heme or plan, circ umstances
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of a c rime cha

rg ed that would other

wise be unc lear , whether

a cr ime char g ed wa s actua lly committed, opportunity

or pre paration, a defe ndant' s dislike or attitude toward the vic tim, to expl ain an other

wise implausible fac t relatingto the crime c harg ed, to contra dict on rebuttal a defe ndant' s denials, to disprove a de fense of entra pment and to disprove a

n alibi defe nse.' " People v . Moser , 356 I ll. App. 3d 900, 913 (2005) (quoting People v

. Millighan , 265 I ll. App. 3d 967, 972-73 (1994))
. In this case, the State introduc ed the testimony at issue to show consciousne ss of guilt. "A fa lse exculpatory

statement is ' probative of a def endant' s consciousness of guilt.' " People v

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

rgued def endant' s statement he sold bullets to Coll ins was a f alse exculpatory

statement bec ause de fenda nt wanted to avoid r evea ling a ny dispute betwee n himself and Collins reg ardinga gun. We also note defe ndant' s purported sa le of bullets also would tend to support defe ndant' s claim Collins had conf ided in him that other individuals were "f ***ing with him"– a c laim which, if believe d, would divert attention fr om defe ndant as a suspect in the shooting. Ac cording ly , we a g ree with the State that defe ndant' s statement was r eleva nt and admissible to show consciousness of guilt. ¶ 94 The Admission of Police Testimony Reg ardingDef

endant' s Statement ¶ 95 Def

endant a dditionally

arg ues the trial c ourt should have suppre ssed testimony reg arding defe ndant' s statement that he wa s prese nt at the shooting ma de in the 5th District lockup ar ea. The State re sponds defe ndant has for feited this issue by failingto raise it in his posttrial mot ion. People v . Thompson , 238 I ll. 2d 598, 611-13 (2010). In g ener al, fa ilure to raise an issue in a
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posttrial motion forfeits the issue on appe al. E.g. , People v . Johnson , 238 I ll. 2d 478, 484 (2010) (citing People v . Enoch , 122 I ll. 2d 176, 186 (1988)). De fenda nt cites People v . Torres , 283 I ll. App. 3d 281, 289 (1996) f or the proposition that the issue wa s proper ly prese rved f

or re view by his written motion to s uppress whic h resulted in an e videntiary hear ing. T he Torres court, howeve r, re cog nized forfe iture existed in that case. Id . Moreove r, Torres relied on People v

. Dicke rson , 69 I ll. App. 3d 825, 828 (1979), which pr edate s Enoch and its prog eny . When a defe ndant fa ils to challeng e the de nial of his motion to s uppress in a posttrial motion, any claimed e rror

relating to the motion to suppress is forfe ited. People v . Cosby , 231 I ll. 2d 262, 271-73 (2008)
. ¶ 96 Def

endant a rgues this issue may

be re viewed a s plain err or. I llinois Supreme Court Rule 615(a) cre ates a

n exception to the forfe iture rule by allowingcourts of r eview to note " [p] lain
err ors or de fec ts affe ctingsubstantial rig hts." Unde r I llinois ' plain err or doctrine , a re viewing court may consider a

forf eited cla im when: " ' (1) a clea r or obvious er

ror oc curr ed and the evidenc e is so closely balanc ed that the
err or alone threa

tened to tip the sca les of justice a g ainst the defe ndant, re g ardle ss of the seriousness of the err or, or ( 2) a c lear or obvious err or occ urre d and that er ror is so serious that it aff

ecte d the fa irness of the de fenda nt's tria l and cha lleng ed the integrity of the judicial proc ess, re g ardle ss of the closene ss of the evide nce.' " Johnson , 238 I ll. 2d at 484 (quoting People v . Piatkowski , 225 I ll. 2d 551, 565 (2007)). The plain e rror

doctrine is intended to e nsure that a defe ndant re ceive s a fa ir trial, but it does not guara ntee e very

defe ndant a pe rfe ct trial. Johnson , 238 I ll. 2d at 484. Rather than ope ratingas a
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g ener al saving s clause, it is construe d as a na rrow a nd limit ed exception to the ty pical for feiture rule a pplicable to unpre serve d claims. Id. The burde n of per suasion rests with the def endant under both prong s of the plain er ror a naly sis. People v . Sargent , 239 I ll. 2d 166, 190 (2010). The ultimate question of whe ther a forf eited cla im is reviewable as plain er ror is a que stion of law re viewed de novo
. Johnson , 238 I ll. 2d at 485. ¶ 97 Gene rally , the first step of pla in-err or re view is to determine whether any err or occ urre d. Thompson , 238 I ll. 2d at 613. In this case, howe ver, de fenda nt solely relies on the f

irst prongof plain-er ror r eview, i.e. , a cle ar or obvious error

occur red a nd the evidenc e is so closely balanc ed that the er ror a lone threa

tened to tip the sca les of justice a g ainst the defe ndant. Where the only basis for plain- err or re view is a c laim that the evidenc e wa s closely balanc ed, we need not f

irst look at whether

an er ror oc curr ed. People v . W hite , 2011 I L109689, ¶ 148. " Where the only basis proff

ere d for plain- err or re view is a c laim that the evidenc e is closely balanc ed, an assessment of the impact of a n alleg ed evide ntiary

err or is rea dily

made a fter r eadingthe re cord." Id . "When it is clea

r that the a lleg ed er

ror would not have aff

ecte d the outcome of

the ca se, a court of r eview ne ed not eng ag e in the mea ningle ss endeavor of de terminingwhether err or
occur red." Id
. ¶ 98 In this case, Collins identified the shooter a s "Elliot" f rom " 71st and Champlain." Although the defe nse produc ed votingrec ords indicatingother individuals with the first or last name of Elliot l ived in the vicinity , the State adduc ed evide nce that a databa se sea rch indicated defe ndant was the sole Elliot li ving in the vic inity of 71st Street and Champlain Ave nue. Only one of the Elliots i dentified by the def ense r esided on Champlain Ave nue; he wa s born in 1912.
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A trier of fac t could rea sonably

conclude a man of

advanc ed ag e wa s unlikely to have be en involved in a dispute with Colli ns over a stolen g un. In any

event, ther e wa s no evidenc e that any of the Elliots identified by the def ense ha d any

relationship t o Colli ns or to the incident. In contra st, defenda

nt acknowle dg ed to police he knew Collins and Odoms confirme d defe ndant knew Collins. Kent identified def endant a s the shooter in the Ke nt robbery ; the expert testimony established the c artridg e ca ses in the Kent r obbery wer e fire d by

the same w eapon which fire d the
car tridg e ca ses re cover ed at the sc ene in this ca se. ¶ 99 The re mainder of

the def ense c ase did not sig nificantly alter this balanc e of the evidenc e. The de fense produce d testimony from Steppe, who did not re cognize Col lins or any of the individuals he observe d runningfrom the sc ene of the shooting. D etec tive Crowder rec og nized only Odoms as one of

the individuals at the scene . Odoms had turned a way from the sc ene when he hea rd gunshots and thus did not wit ness the shooting . Odoms provided stateme nts to the police re fer

ringto BigMike, but never stated to ASA Gillespie that B ig Mike had a gun or identified B ig Mike as the shooter . Wil liams testified defe ndant was at her house a t approximately

4 to 4:20 p.m. on the date of the shooting , well af ter the pa rame dics wer e dispatched at 3:57 p.m. Given this record, w e conc lude, eve n if the trial cour t erre d, the evidenc e was not closely

balanc ed and de fenda

nt cannot esta

blish plain error in this ca se. ¶ 100 V. The Q uestioning of the J ury Venire ¶ 101 L astly , defe ndant contends he was de nied a f air trial on the ground that the trial c ourt failed to que stion prospective juror s in acc ordanc e with the ame nded ver sion of I llinois Supreme Court Rule 431(b) (e ff. Ma y 1, 2007). Supreme Court Rule 431(b) imposes a sua sponte duty on
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trial courts to question prospec tive jurors, individually or in a group, as to whe ther they understood and a cce pted the princ iples outlined in People v . Zehr , 103 I ll. 2d 472, 477 (1984), "that a def

endant is pre sumed innocent, that he is not required to off er a ny evidenc e in his own behalf , that he must be prove d guilty beyond a re asonable doubt, and that his failure to testify in his own behalf c annot be he ld ag ainst him." See People v . Hayne s , 399 I ll. App. 3d 903, 912 (2010). ¶ 102 The State re sponds defe ndant forf eited this issue by

failingto object to the trial judg e' s questioning of

the venire as not substantially complying w ith Rul e 431(b) at the time or in the posttrial motion. Defenda nt ag ain ar gues for

plain err or re view, asse rtingthe evidenc e in this
case was c losely

balanc ed. F or the re asons pre viously stated, we conclude the evidenc e wa s not closely balanc ed in this case. A ccor dingly , defe ndant' s argument fails. ¶ 103 CONCLUSI ON ¶ 104 For

all of the a fore mentioned re asons, the judg ment of the c ircuit court of Cook County

is aff irmed. ¶ 105 Affir

med.

39