1 SIXTH DI VISI ON February 11, 2010 No. 1-08-0645

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Cook County , Illi nois. ) ) ) No. 97 CR 26083 v. ) ) CESA R MUNO Z, ) Honorab le ) Marcus R. Salone Defendant-Appellant. ) Judge Presi ding.

JUSTICE JOSEPH GORDO

N deliver ed the opi nion of the

court: This case arises from the shooting of the victim, Magda liz Rosaria, which occurred on Septembe r 8, 1997, at 1707 North Arte sian Ave nue in Chic ago. Pr

ior to her death, th e victim lived at the aforementioned address with her boy friend, the defendant, Cesar Munoz. On October 19, 1997, the defendant was char ged with the victim’s murder on October 19, 1997. This case was subse quently

tried thr ee times. Each time

the cent ral issue at trial w as to determine whether the death occurr ed as a result of a homicide or as a result of a suic ide, as the defendant maintained. The cas e was first tried on May 3, 2000. The first ju

ry to hear t he case was unab le to reach a verdict, and a mistrial was dec lared on May 7, 2000. A second trial commenced on November 2, 2000, and the defendant was ag ain tried by a jury . This time, the jury returned a verdict finding the defendant guilty of first-degree murder. Tha t conviction, however, was reversed by

this appellate court on May 3, 2004, by reason of

(1) the trial court’s error in barring2

evidence of the victim’s suicidal state of mind prior to her death, i.e. , certain declarations that she had made, which indicated suicidal ideation; and (2) the improper testimony of the State’s expert pathologist who was permitted to testify , over defense counsel’s objection, that in forming he r opinion as to the manner of the victim’s death, she was certain of he r conclusion “bey

ond a reasonable doubt,” thereby invading the province of the jury . See People v. Munoz , 348 Ill. App. 3d 423, 810 N.E.2d 65 (2004). On September 27, 2007, upon remand to the trial court, the defendant’ s case was tried by a jury for the th ird time. T

he defe ndant wa s found g

uilty of first- degre e murder

and subse quently

sentenc ed to 45 y

ears’ im prisonme nt. This ap

peal fol lows, and

the defe ndant now

raises si x contentions of error. These include: (1) that the trial cour t erroneously a

dmitted into evidence several hearsay

statements made by the victim while she was alive; (2) that the trial court erred when it permitted two policemen, Officer Rivera and De tective Rutherford, neither of whom was qualified as an expert in gunshot residue testing, to testify about gunshot residue transference ; (3) that the tr ial cour t errone ously

permitte d the State ’s expert f orensic pathologist, Dr. Jone s, to again invade the province of the jury by testify ing that the manner of the victim’s death was homicide “beyond a

reasonable degree of

medical certainty ,” and by opining on the credibility of the defendant’s assertions to police that the victim’s death was a suicide c aused by depr ession; (4) that the trial court erred when it permitted Detec tive Rutherford, who questioned the de fe nd an t a ft er hi s a rr es t, to gi ve te st im on y as to th e u lt im at e i ss ue of th e d ef en da nt ’s cr ed ib il it y, and (5) that the prosecutor engag ed in pervasive prosecutorial misconduct during closing argument by

repeatedly

and improperly shifting

the burden of proof onto the defendant, thereby prejudicing the outcome of the trial. L astly, the defe ndant challenges the sufficiency of the3

evidence used to convict him. For the reasons that follow, we reverse and remand. I. BACKGROUND The record below reveals that the following relevant evidence was adduce d at the defenda nt’s third trial. A. State’s Case in Chief Lizette Hidalgo first testified on behalf of the State. She stated that she was the victim’s sister an d that on Se

ptember 8, 1997, th e victim w as 21 y ears old and lived at 1707 North Artesian Avenue, Chicago, with the defe ndant, who was her boy

friend. Hidalgo also testified that she last saw her sister alive on September 1, 1997. On September 8, 1997, Hidalg o was contacted by

the police, who informed her that her sister was dea d and asked her to identify the body. I n court, Hidalgo identified photographs of the victim taken pr ior to the incident and photogr aphs of th e victim ta

ken in the medical e

xaminer’s office . She also s tated tha t the victi m was right handed. On cross-examination, Hidalgo explained that the victim was not her biological sister. The vi ctim was Hi dalgo’ s cous in, b ut Hi dalgo’ s mot her ado pted h er, and the vi ctim and Hi dalgo lived as sisters. Hidalgo conceded that the victim’s biologica l mother, Hidalgo’s aunt, never visited the victim. Richard F lores ne xt testified for the St

ate. He first acknowledg ed that he is curre ntly housed at the Indiana State Penitentiary for a parole violation in an unrelated robbery conviction. Flores also admitted to having an outstanding arr est warrant in Connecticut. Flores, however, denied making a deal with the State in exchange f or his testimony in the defendant’s tria l. Flores next said that he first met the defendant and the victim in 1995 and that they1 Flores explained that as part of his employ ment at Luna Security, he performed crowd control duties at concert venues and sports stadiums, and he never carried a weapon. 4 became good friends. Accor ding to Flores, at that time, the defendant and the victim lived togethe r with the victim’s d

aughte r, Lu cy , in an apa

rtment somewhere

on Le Moy

ne Avenu e in Chicago, which was owned by the defendant’s father. Flores state d that at some point, the defendant and the victim asked him to move into this apartment with them to help pay their rent. Even with Flores’ temporary help, however, the defendant and the victim were unable to make their re nt pay ments and

were so on force d out of the apartme nt and into

a new one

at 1707 North Artesian Avenue. Flores did not move with the defendant a nd the victim at that point, but went to live with his mother at 4744 West Byron Street. Flores s tated tha

t sometime

in June or July

1997 he be came ro mantical ly in volved wi th the victim . Flores

explained

that at tha

t time he w orked at

Luna Security 1 and that the victim had come to hi

m more tha

n once a sking if

he could help her f

ind employ

ment ther e. Over defense counsel’ s objection, Flore s was next pe rmitted to testify that durin

g these visits, the

victim wou

ld also complain to him about her relationship with the defendant, telling Flores that “the defendant had been jealous of her,” that he “ wa nted to know where she was and what she was doing all the time,” an d that she had bec ome unhap

py. The victi

m further told Flor es that sh e wante d a job so that she could become independent from the defenda nt. Flores explained that, at that time, neither the defe ndant nor the victim

had bee n employ ed but tha t, instead , they

lived on pu

blic aid that the victim was receiving for her childre n. Accord ing to F lores, so metime in A ugust 19 97, about

two months a

fter he began his affair with the vi ctim, the v

ictim aske d him to move

in with her

into the a partmen t at 1707 N orth5

Artesian Avenue, which she was then sharing with the defendant and her three children. F lores explained that after he moved in, the household consisted of the defendant, the victim, himself, and the victim’s three children: Luc y, the victim’s child from a pre vious relationship (4 years old), and Talissa (1 1⁄2 ye ars old), and Katherine (5 or 6 months old), children that the victim had had with the defendant. Flores d escribe d the res idence a s a two-be droom apa rtment wit

h a kitche n, living room, bathroom, and an additional small room. According to Flores, the de fendant shared a bedroom with the victim, and the three girls shared a small room betwee n the bedroom and the living room, whil e Flore s himself s lept in the living r oom. Flor

es admitte d that he c ontinued h is relationship with the victim when he moved into her apartment and that the defenda nt never learne d of it. According to Flores, during tha t time, the victim continued to express her feelings about her failing relationship with the defendant and her desire to “get away

from the defendant.” Flores t estified , howeve

r, that thr oughout that time the victim ne

ver told h im that she

wanted to kill herse lf or that

she want ed to lea ve her c hildren. In fa

ct, Flor es was a damant th at the victim loved her children “very

much.” Flores next testified that at the victim’s request, he made an appointment for her to se ek employment with his supervisor at L una Security on September 8, 1997. According to Flores, on that morning at about 8 a.m., he and the victim were prepa ring to leave the apartment, while the defendant was to stay

behind and watch the children, who were a sleep, when the defendant called the victim back to talk to her. Flores waited in the car while the victim and the defendant spoke. He could therefore not hear the c ontent of their conversation or observe either the victim or the6

defenda nt. Flores then drove the victim to Luna Sec urity at 1233 West Eerie Ave nue, where she procee ded to fill

out a job a

pplication and spe ak to Flor es’ supe rvisor. F lores tes tified tha t while the victim

was fillin

g out he r job appl ication, he went o utside to sm

oke, whe reupon h e ran int

o the defe ndant. Th e defen

dant, who did not own

a vehicl e, had c ome to L una Secu rity in his brother ’s truck , bringi

ng the th ree chi ldren wit

h him. The d

efenda nt told Flo res to g et the victim, because “a repr esentat ive from t he Depa rtment of Children a

nd Family

Service s (DCFS) had just been to their apartment.” Flores went bac k inside and told the victim what the defendant had said, but “she only smirked bac k at him.” Flores went outside and watched as the def endant entered Luna Sec

urity, with the victim’s y

oungest daughter in hand, and spoke to the victim. Flores conceded that it did not appear to him at any point during that conversation, or for that matter, in the course of that entire morning, that the def endant had been upset or angry

. Flores next testifie d that soon thereafter the

victim lef

t Luna Security and hea ded home with the defendant and her children. Accor ding to Flores, at that point, the victim appeared to be very happy

because she had been hired on the spot to act a s an usher at 12 of Northwestern University’s upcoming

home games. Flores met up with the defenda nt and the victim about 15 minutes later in front of the apartment building at 1707 North Artesian Ave nue. Flores arrived first and spoke to a mutual friend who was standing next to the building, when the victim and the defenda nt arrive d. Flore s again

testifie d that, at

this point, t

he victim a

ppeare d very

pleased with herself because of her ne w-found employ ment. Flores fur

ther adm itted, how ever, th at at this point, the defenda nt, who wa s sitting next to the vic tim in the tr

uck while she was d

riving, did not seem at all upset or angry . Flores also noted that it was the first time since he had met the7

victim tha

t he had se en her dr

iving an d that this w as unusua

l. Accord ing to F lores, th e victim th en walke d a few houses ove r to retur n the truc k key to the defendant’s brother, who lived nearby . She returned soon thereafter and F lores told her that he need ed to run a

n erran d. The victim then as ked him to h elp her c lean the

house upon his return, because the defendant ha d “made a mess,” and Flores promised her tha t he would. However, when Flores returne d about an hour later, he saw police cars in fr ont of the building and learned that the victim was dead. Flores was next shown a series of photographs of the a partment at 1707 North Artesian Avenue, taken at the scene of the cr ime, and asked whether those photographs depic ted the apartme nt as it wa s on the mor

ning of S eptembe

r 8, 1997, before

he left f or Lu na Secur ity w ith the victim . Flores

explained

that the a partmen t was ge nerally messy , but he sta

ted that si nce his departure for L

una Security seve

ral items appeared to have been disturbed. F irst, Flores explained that, unlike the conditions depicted in the photographs, on the morning of the incident there were no hangers, socks, notebooks or magazines on the floor of the victim’s bedroom. Nor were the re flippe d-over c

hairs or a broom a

nd a hat on

the living

room floo r. Flore s also said that the floor of the hallway was not scattered with clothes. Flores finally explained that when he left the a partmen t with the victim on the

morning of the inc ident, the

re was no blood an

yw here in the apartment but that the photographs taken at the sce ne of the crime after the incident depicted blood on the floor of the hallway , in the living room, in the victim’s bedroom, and on the victim’s bed. Flores next identified a gun, which he was shown, and testified that it belong ed to the defendant. Flores explained that this gun was kept “either in the closet or under the mat” in the8

bedroom shared by

the victim and the defendant. Over defense c ounsel’s objection, Flores was permitted to testify that the victim did not like having the g un around the house because of the children. Flores also testified that he never saw the victim hold or touch the weapon. On cross-examination, Flores admitted that he often entered the a partment on Artesian through a side door, which led to a gang way and a

front gate. He admitted that neither the side door nor the front gate was ever locked and that several friends of the victim and the def endant knew that they c ould enter the apartment this way without a key. On cross-examination, Flores further acknowledg ed that he never told the defendant that he had an affair with the victim and that he had no re ason to think that the defendant was aware of the affair, as he and the victim had taken pa ins to conceal it. Flores further admitted that he and the victim had no intention of moving out of the apartment together. Flores next acknowledged that the defenda nt did not object or become angry when Flores took the victim to Luna Security on the morning of September 8, 1997. I n fact, Flores admitted that, before he and the victim left for L una Security, the de fendant called the victim back to the apartment because “he did not want to watch the c hildren.” Flores a lso testif ied on cr oss-examination tha

t after t hey all retur ned from Luna Security and stood i

n front of the apar tment build

ing, he told the vic

tim and the

defenda nt that he would return to the apartment “after he ra n an errand.” Flores admitted that he neve r told the defendant how long this errand would take and acknowledg ed that he “might have returned at a ny time.” On redirect examination, Flores admitted that he did not know whether defe ndant was

aware of his af fair with the victim , as he did

not know if

the victim

had eve r disclose d the aff

air to the def endant. F lores fu

rther sta ted that in all his time

living in the apar tment at 17 07 North9

Artesian Avenue, he never saw a nyone attempt to open the be droom door with a nail, nor did he ever see nails ly

ing on the floor near the bedroom door. He sta ted, however, that when the bedroom door was locked, it could be opened from the outside by using a butter knife, and he had seen this done in the past. Chicag o police o fficer

Norber t Rivera next testifie d that on Se ptember 8, 1997, he

was in uniform and in a squad car working the morning shift when at approximately 12:30 p.m. he responded to an emergency call of a person shot at 1707 North Artesian Avenue. Of ficer Rivera proceeded to the address, which he desc ribed as a multi-unit two story building loca ted on a residential street with two-story homes throughout the area. According to Officer Rivera, a squad car was already

parked at the scene and a g roup of people was congreg ated in the gangway of the residence. Officer Rivera testified that he proceeded through the g angway and up a flight of sta irs t o the s econd floor , where he obs erved s everal offic ers and the pa ramedi cs tre ating a young woman who was lying facedown on the floor with a lot of blood around her. Off icer Rivera later learned that the y oung woman was the victim, Magdaliz Rosaria. Officer Rivera testified that when he loudly asked whether “the victim’s husband was around,” a man who was standing next to him, whom he later learne d was John Berrios (the defenda nt’s cous in), advi sed him tha t he would

find the d

efenda nt acros s the stre et at 1704 North Artesian Avenue and then proceede d to take him there. Officer Rivera went to this address a nd questioned the defendant there. According to Officer Rivera, when he first observe d the defendant, the defendant was not cry ing, and did not seem upset, but merely sat in a chair in the middle of t

he apar tment. Of

ficer Ri vera ha d to ask the

defenda nt a coupl e of times

to tell him what had happened before the def endant even spoke. The defendant then told Offic er Rivera that2 We note that Detective Slater never testified at trial. 10 he and the victim had gotten into a fight and that she ra n into the bedroom, closing the door behind her. The defendant then heard “ a loud pop”and had to force the door open to g o inside. The defendant told Officer Rivera that he pic ked up the victim, carried her out of the room, and called 911. When questioned about the gun, the defendant first remained silent, then told Officer Rivera that he threw it into a garbag e can behind the house. Thereafter , Officer Rivera escorted the defendant to the four garba ge cans located behind the building at 1707 Nor th Artesian Avenue, where he unsuccessfully attempted to find the gun. The defendant then pointed out the garbage ca

n where he had thrown the gun and he lped Officer Rivera locate the wea pon. Officer Rivera testified that the gun was about a foot and a ha lf inside the four-foot-deep garba ge can. Officer Rivera then handcuffe d the defendant behind his back, positioned him in the back of the squ ad car a nd escor ted him to th e station. Upon instr uction fr om superv

ising de tectives , Office r Rivera made sur e that the defenda nt did not wa sh his hand s or wipe h is hands pr

ior to being placed in the squad car. Off icer Rivera admitted, however, that at that time he did not know that the detectives intended to test the defendant for g unshot residue. Officer Rivera further acknowledged that he ha d never transported a person for the purpose of having a gunshot residue test performed and was not awar e of how gunshot residue can be transf erred to another surface. Over defense counsel’s objection, Offic er Rivera was permitted to testify that subsequent to the defendant’s arrest, a detective na med Slater 2 informed him that gunshot residue evidence can be lost and transferred by an individual wiping his hands on the seat of a car. On cross-examination, Officer Rivera admitted that he never trained in gunshot residue11

tests and that he never performed or ana lyzed results of such tests. I n addition, Officer Rivera admitted that he noticed nothing unusual while the defendant was being transported to the police station in the back of the squad car and that he never observed defendant wiping his hands or moving back and forth in his seat. On cross -examinat

ion, Offi cer Rive

ra also a dmitted tha

t at the de fendant ’s prior t rial in May 2000, he h ad testif

ied that w hen he fi rst questi oned him a

bout the incident de fendant “did not hesitate to tell [him] what happened.” Detective Edwin Dickinson next testified that at about 1:30 p.m. on September 8, 1997, he inter viewed the defen

dant at Ar ea 5 polic e station. Detecti ve Dickin son state d that prior to speaking with the de fendant , he intro duced him self and read the defenda nt his Miranda

rights from a Fraternal Order of Police (F.O.P.) book. The defendant indicated to Detec tive Dickinson that he un derstood those rig hts and wished to spe ak to the d etective . The def

endant th en told Detecti ve Dickin son that he

was jeal ous of Flores and “ pissed of f” when on the mor

ning in question the victim went with Flores to apply f or a job. The defendant stated that when the two left, he started throwing things around the house a nd “messing it up.” About 15 minutes later, at about 11:15 a.m., the defendant grabbed his childre n and drove to Luna Security , where he knew the victim and Flores would be. The defendant told Detective Dickinson that he went inside and brought the victim out with him, and that as he did so the victim told him that “he was nuts.” The defendant and the victim got into the defendant’ s car, and the defendant procee ded to give the victim a driving lesson on their way home. According to Detective Dickinson, the defe ndant stated that once they arrived home, the defendant apologized to the victim for “messing up the house” and told her that he would put the3 As shall be described in further testimony below, the defendant’s brother and fathe r were next-door neighb ors to the

victim and

the defe ndant. 12 two younge

r children to bed and give the older one a bath. The defendant told Detective Dickinson that at that point the victim ran into the bedroom, slammed the door and locked it. The defendant tried to pry the door open with a nail, but then heard a “loud pop” inside the bedroom, and so proceeded to kick the door in to ga in access to the room. Once inside the bedro om, t he defe ndant saw th e vict im lying o n the b ed, wi th her back aga inst the wa ll bl eedin g, holding a gun in her hand. The defe ndant picked the victim up from the bed and started drag ging her across the floor toward the front exit. The defenda nt noticed that the victim was still holding the gun, so he picked it up and threw it out of the window. The defe ndant told Detective Dickinson

that once he reac hed the st airs he s tarted y

elling f or help a nd that soon therea

fter his father and brother 3 arrived, and his brother was sent to call the police. On cross-examination, Detective Dickinson acknowledge d that he did not audiotape, videotape, take notes of, or use a court repor ter to transcribe the defendant’s interview. D etective Dickinson also clarified that when the defendant stated that he was jealous of Flores, he stated that he was jealous because Flores had a job and he did not. In addition, Detective Dickinson agreed that the defenda

nt told him nothing about Flores and the victim having an affair. On cross-examination, Detective Dickinson identified a photograph of the defendant taken at the time of the interview and stated that the defenda nt’s hands appeared dirty and smudged, and that his T-shirt did not appear to have a lot of blood on it. Detecti ve Rober t Rutherf ord next te stified th at toge ther with his partn er Dete ctive Ke

vin McDonald, at about 12:25 p.m. on September 8, 1997, he responded to a call of a shooting that13

had taken place at 1707 North Artesian Avenue . Detective Rutherford stated that once inside he observed the victim’s body ne ar the staircase of the front entranc e, as well as a blood trail leading from the bedroom to the front entry way of the a

partment. Detective Rutherford, however, observed no damage to the handles or the f raming of the bedroom door. He further inspected the garbage ca

ns behind the apartment building where the gun was found and noted that one of the garba ge ca ns was rig

ht below a

window to t

he victim’ s apartme

nt. Detective Rutherford next testified that later that afternoon, at about 3:15 p.m., he returned to Area 5 police station to interview the defe ndant. The defendant had already been tested for gunshot residue and was seate d handcuffed inside the interview room. Detective Rutherford proceeded to Mirandize the defenda nt using the F.O.P. book, and the defendant indicated that he wished to speak to the detective. The defendant gave the e

xact same statement to Detective Rutherford that he had previously g iven to Detective Dickinson. The defendant merely added that when he went to pick the victim up from Luna Security he borrowed his brother’s truck. He furthe r added that he was trying to dra

g the victim’s body a

cross the living room floor in order to take her to the hospital and that he picked up the gun she was holding in he r hand at that time and threw it out of the window, which was across the room. Detective Rutherfor d testified that this window was about 15 to 20 feet away

from where defendant must have been sta nding at that point while dragging the victim’s body. The def endant also told Detective Rutherford that after his brother c alled the police, he went across the street to his cousin’s house, where he waited for the police. Over defense counsel’s objection, Detec tive Rutherford next testified that he told the defendant that he did not believe him. Specifically Detective Rutherford pointed out two14

discrepancies in the defendant’s statement: (1) that ther e was no damage to the bedroom door althoug h defend ant had st ated tha t he had br

oken it in, and (2) t

hat it was phy sically

impossible for the gun to have landed in the trash ca n in the place that it did, if it had been thrown out of the window from the middle of the living room floor. Detective Rutherford, explained that he then left the interview room to per mit the defendant to “think it over” and then returned at a bout 4:15 p.m. to reinterview him. According to Detective Rutherford, at this point the defendant provided a somewha t different version of events. The defendant told Detective Rutherford that he was opening the bedroom door with a nail when he heard a “loud bang” from the room. When Detective Rutherford told the defendant that he ne ver saw a nail in th e apart

ment, and asked him

where the nail wa s, the def endant c ould not answer. The defendant also told Detective Rutherf ord that instead of throwing the gun out of the window from the center of the living room, as he pr eviously stated, he picke d up the gun, walked over to the window and dropped it down onto the gar bage can, before r

eturning to the victim and continuing to drag her to the front door. Detecti ve Ruther ford tes tified tha

t he aga in told the d

efenda nt that he did not bel ieve him because the gun was found dee p inside the garbage ca

n and not lying on top of it as it would have been had it been thrown out of the window. Detective Rutherfor d again exited the interview room and returned at 6 p.m. to speak to the defendant for a third time. During this interview, the defendant provided y

et another version of events. The defenda nt told Detective Rutherford that as he wa s put ting t he chi ldren to bed , the v icti m ente red th e bedro om and he saw h er hol ding a cocked gun in her hand. The def endant went into the bedroom and began to strug gle with the victim over the gun. During the strugg le the barrel turned around and was pointed at the victim’s15

face, a nd then “i t went off .” The de fendant

told Dete ctive Ruth erford that he dr

opped the gun in the garbage ca

n and dragged the body

to the foot of the stairs, where he was met by his brother and his father. Detective Rutherford testified that he a gain told the defendant the he did not believe him. Detective Rutherford explained that he told the defendant that it would have be en impossible

for the d efenda nt to twist th e victim’ s hand so a s to point the gun at h er fac e becau se the gun had a 10-inch barrel. When Dete ctive Ruth erford asked the defenda nt where he orig inally

obtained this particular gun, the defendant stated tha t he found it behind some bushes in Reese Park. Detective Rutherford stated that he did not believe that the defe ndant found this gun at a park because “this was a very

nice gun.” On cross -examinat

ion, Dete ctive Ruth erford admitted t

hat he ne ver made any notes of h

is three interviews of the defendant, that none of the interviews were audio or video taped or record ed by a court r eporter , or made

in the pre sence of

a prosec utor. Detective R

utherford also admitted t hat he ad vised the defenda nt of his Miranda

rights only

at the be ginning

of his fir st interview and did not re-Mirandize him when he returned to the interview room on two subseque nt occas ions. On cross-examination, Detective Rutherford identified a photogr aph of the defendant taken at the time of the interviews and stated that the defenda nt’s hands appeared dirty and smudged and that h e did not a

ppear to have a lo t of blood on him. Detective Rutherford also admitted that although the police off icers canvassed the area after the crime, they

found no witness who reported having heard a struggle in the victim’s apartment or having seen the defe ndant throwing the gun out of the window.16

On redir ect examination, De

tective R utherford was pe

rmitted to testify, over de fense counsel’s objection, that he did not believe that “the defendant eve r told [him] the truth.” On redirect examination, Detective Rutherford testified that if the def endant had

scream ed inside

the apar tment, the defenda nt’s cous in acros s the stre et would not have be en able to hear it because the victim’s apartment was in the rea r of the building at 1707 North Artesian Avenue. Detective Rutherford also testified that aside fr om the defendant’s family members, no witnesses were found who stated that they heard the defendant scream for help. Detective Rutherford also noted that although the defendant’s fa mily members stated that they heard the defendant calling for help, they all denied having heard the gunshot, whic h Detective Rutherford described as “very

loud, rather like a cannon.” Over de fense c ounsel’s

objectio n, Detective Ruthe rford ne xt testified

that it wa s his opinion that because upon the defendant’s arre st, the defendant was handcuffed from be hind and slid into and out of the police car, “the chances of dete cting gunshot residue became r emote.” Accord ing to De tective R utherfo rd, “the

gunshot residue could hav e been tr

ansfer red eve ry time the defendant touched something.” During redirect examination, Detective Rutherford a lso testified that in his many y ears as a detective he has come across many suicide scenes, but he has never come ac ross one where the suicide weapon is missing, and he found this suspicious during the investigation. On re-cross-examination, Detective Rutherford ac knowledged that gunshot residue can be obtained not only from the de fendant’s hands but also from clothing he would have bee n wearing during t he incide nt. The parties next stipulated to the admissibility of the prior testimony of Chicago police4 Robert Davie was deceased at the time of de fendant’s present trial.

5 The parties testified that the proper chain of custody was observed in transporting the weapon and the fired cartridg e to the crime lab. 17 evidenc e techni cian and

forensi c investig ator Robe rt Davie

4 at defe ndant’s previous t

rial, and to the transcript of that testimony, which was then read to the jury . Davie testified that at about 12:15 p.m. on September 8, 1997, he processed the scene of the c rime at 1707 North Artesian Avenue. Davie first proceeded the a lley behind the reside

nce, where he photographe d the gun and removed it from the garbag e can. Davie identified the gun as a newer model of a bluesteel .44 Mag num, Rugg er bran

d with a te

n-inch ba rrel, a nd inventoried it by

using la tex glove s to protect the gun from contamination and placing the gun in a sealed bag. Da vie also unloaded the weapon and discovered a single- fire cartridge, which he the n inventoried at the police crime lab. 5 Davie ne xt procee ded to the

second f loor of th e reside

nce whe re he obs erved th e female victim lying fac e down in the exterior hall and what appeared to be dra g marks leading from the bedroom to the hallway. D avie noted a large amount of blood in the bedroom and on the

mattress , as well a s a footpr int on the ma

ttress. Davie finally testified tha t at about 1:59 p.m. on September 8, 1997, he performed a gunshot residue test on the victim and that he performed the same test on the defendant at approximately 3 p.m. that afternoon. Robert Berk, a trace evidenc e analyst employ ed by the I

llinois State Police crime lab, was qualified as an expert in gunshot residue analy sis and testified that he analy zed the results of the gunshot residue tests performed on the defenda nt and the victim by Davie. B erk said that the victim’s right hand tested negative for g unshot residue but that the victim’s left hand tested18

positive, indicating that she handled, fired, or was in close proximity to a weapon as it was being dischar ged. As to the test s perfor

med on the

defenda nt’s hand s, Berk

testifie d that thos e tests were inconclusive. Specifically , with respect to the defendant’s left hand, Be rk stated that there were elevated levels on both the palm and the bac k of the hand, but “due to the elevated level of the barium to antimony ratio [he] was unable to associate those elevated levels with the gunshot residue, [and] as a result the samples from [the defendant’s] left hand [we]re inconclusive.” With regard to the test performed on the defenda nt’s right hand, Berk stated that “[t]here [were] elevated levels that [were] not what [he] would consider a normal level of the elements for a n individual in the general population. The levels [were] what [he] would *** refer to as ele vated and significant.” According to B erk, elevated and significant levels of the se elements are present when a firearm is discharge d, and therefore he could not rule out that the defe ndant had handled or discharged a firear

m. He explained that the levels indicated either “the remnants of g unshot residue or simply some exposure to those eleme nts from an environmental source.” Berk was next asked to explain the concept of gunshot residue tra nsference and expounded

that “an y normal act

ivity that an individual g o[es] throug h with thei

r hands w ould transfer the gunshot residue on their hands to those other sur faces.” Berk specific ally stated that transference would occur if one person grabbed the hand of anothe r who had just discharged a firear m. Berk also state d that tra

nsfere nce cou ld occur if a per son was ha

ndcuffe d behind h

is back and slid into a squad car with his hands rested aga inst the backseat, because “y ou would be losing the residue to both the back of the gar ment that you were

wearing and also to the back of the squad car seat.” On cross -examinat

ion, Ber k acknow ledged that the a naly sis of gu

nshot res idue per

mits19

only three scie

ntifically acc epted results: (1) positive; (2) inconclusive; and (3) normal, and that the defendant’s hands had both tested as “inconclusive.” B erk further expounded that even testing positive for gunshot residue would not necessarily mean that a person fired a weapon, a s it could also mean that the person merely handled the gun or was in close proximity to the gun when it was discharged. On cross -examinat

ion, Ber k acknow ledged that as pa

rt of stan dard pro cedure

at that time the lab di d not test sh

ort-slee ved T-sh irts for g unshot re sidue bec ause suc h a shirt is

not close enough to the han

d which ha

ndles the firear m. Berk also admit

ted that th ere wa s no indica tion in this case that the defendant’s hands had been wa shed prior to the performance of the g unshot residue test. Illinois State Po lice for

ensic sc ientist Jose

ph C. Thiba

ult, an expe

rt in the a rea of f irearms identification next testified that he received a bullet from the medical examiner that was recovered from the head of the vic tim, as well as the gun that was recovered a t the scene of the crime. After testing the fired ca rtridge from the gun rec overed at the scene of the crime a nd the bullet recovered from the victim’s head, it was Thibault’s opinion to a rea sonable degree of scientif ic certa inty that the g un recov ered at

the scene fired

the bullet which kil led the vi ctim. Thibault also stated that the gun used in this case was particular be cause it had a very long, 10- inch bar rel. Illinois State Police forensic scientist Cy nthia Engelking-Prus was next qualified as an expert in the area of forensic latent print examination, and she testified that she found no late nt impressions on the gun retrieved at the scene of the crime that would have been suitable for comparison.20

Dr. Nancy

Jones, the chief medical examiner of Cook County, was ne xt qualified as an expert in forensic pathology , and she testified that on September 9, 1997, she performed an autopsy of the victim’s body . Dr. Jones testified that the victim was a 21-ye ar-old female, 5 feet 3 inches tall and weighing 137 pounds. Dr. Jones stated that the autopsy reve aled a “near contact” or “ soft contact” range g unshot wound just below the lower lip of the victim’s mouth. The skin was charred or burned a round the entrance wound and it was surrounded by gunpowder. Dr. Jones explained that a “near contact” or “close contact” wound is one whe re the gun “is just barely

touching the body

” and there is enough room for some of the g unpowder from the weapon to get deposited on the body around the entrance wound. Dr. Jones further testified that during her internal examination of the victim she recovered the bullet from inside of the victim’s head, and de termined that the bullet had entered through the lower lip with a slight left to rig ht, upward trajectory

. Dr. Jones c oncluded

to a rea sonable d

egree of medic al certa

inty that the victim died

as a result of a gunshot wound to her face a nd that the manner of death was homicide. Dr. Jones explained that the manner of death is consistent with homicide rather than suicide beca use of the location and type of the

entrance wound. Specifically , she stated that the this was a soft contact wound, “which means [that] the gun was not exactly in complete contact with the body [, which] is unusual, as suicides usually put the g un firmly on the skin.” Dr. Jones contrasted this wound with wounds typical in homicide case s, stating “[i]n homicidal close range gunshot wounds *** or near contact wounds there is usually some evidence that the victim tried at least to pull away leaving that little gap between the entra nce wound or where the skin is and where the e nd of the barrel of the gun is at.” With respect to the location of the wound, Dr. Jones explained that21

unlike the present wound, suicide wounds are often found on the rig ht or left temple region or inside the mouth in the

hard pal let. Altho

ugh Dr. Jones ackn

owledg ed that sh e has come acros s “contact range g

unshot wounds which are self-inflicted on the undersurfac e of the chin,” she explained that those are usually “ up in an area where the bullet can g et to the brain itself or the brain stem.” Dr. Jones testified that in coming to her conclusion about the manner of the victim’s death she reviewe d all of the

crime la b report s, the gu

nshot res idue tests

perfor med on the

victim and the defendant, the 911 transcripts, and all of the cr ime scene photographs, and she stated that none of these documents altered her opinion that the death wa s a homicide. Dr. Jones further acknowledged that afte r the defendant’s second trial, she review ed two more doc uments in o rder to d

etermine whether they would cha

nge he r conclu sion with r

espect t o the manne

r of dea th. The fi rst docum ent was a

n affida vit prepa red in 200 0 by

Elizabeth Constable , the vict

im’s frie nd, who wa s 16 y

ears old in 1997. Ac cording

to Elizabeth’s aff

idavit, sometime in 1997, a few weeks before the incident, the victim told Elizabeth that she force d herself to throw up and that after disagr eements with the defendant she did not care whethe r she lived or d ied. The record further reflects that ac cording

to Elizabeth at this time the vic tim did not appear concerned with her childre n and, in fact, told Elizabeth that “her family would take care of [them].” Dr. Jones stated that this affidavit did not change her opinion as to the manner of death , becau se there

was nothin

g in the a utopsy indicatin g that th e victim w as making herself throw up and, further, because the statement a bout not caring whether she lived or died expressed apathy ra ther than an intent to commit suicide. Dr. Jones also reviewed the statements of Carol Gonzales, another one of the vic tim’s22

friends, who was interviewed by a State investigator subsequent to the defendant’s first trial and who stated that the victim attempted to commit suicide after the birth of her first child. The

re co rd fu rt he r r ev ea ls th at Go nz al es al so to ld th e i nv es ti ga to r t ha t “ pe op le in th e c hu rc h a lw ays picked on her [the victim].” Dr. Jones explained that these statements did not change her opinion as to the manner of death, because she was unc lear as to their accuracy and because there was no evidence here of postpartum depre ssion. Dr. Jones finally concluded that ba sed on all of the aforementioned information she was convince d “bey

ond a rea sonable d

egree of medic al certa

inty that this [wa s] a homicid e and not a suicide.” On cross-examination, Dr. Jones admitted that she was neither a psy chiatrist nor a psychologist and tha

t it was impossible for her to determine from the autopsy how the victim was feeling, whether she was suffe ring from depression, postpartum depression, or an ea ting disorder, or wheth er she ha

d attempte d suicide

four y ears pr ior to this i

ncident a fter the birth of h er first child. On cross-examination, Dr. Jones admitted that a gun was the single most common choice of weap on for sui cide amo ng 19- to 24-y ear-ol d girls a

nd that, w hen a g un is used, the most common choice of p lace to s hoot was the head. Dr. Jones f urther a cknowle dged th at she is

unawar e of any single p ublished s cientifi c study

indicatin g that th e only

way to commit su

icide is by placing

the gun inside the mouth, on the temple or underneath the chin. Dr. Jones further acknowledged that the inventory of the victim’s clothing, which she received as part of the autopsy , did not reveal that the victim had a check for $55 on her pe rson. Dr. Jones also acknowledged that during the autopsy she examined the victim’s nails. She stated23

that the victim had long artificial nails with a pattern on them, and none of the na ils were either missing o r chippe d, or con tained a ny r esidue or skin under

neath the m. Dr. Jones also admitted that in coming to her conclusion that the manner of death was homicide she did not consider the following facts: (1) that the victim had bee n abandoned by

her mother at birth, (2) that not too long prior to the incident the victim had arrang ed to meet her biological mother for the first time but that the mother called it off at the last minute; (3) that the victim had

had thre e childr

en in the p ast four

ye ars, (4) that at the

time of the

incident the victim was fac ing evic

tion, and ( 5) that a

t the time o f the inc ident the victim wa s having

an affa ir with Flores. Dr. Jones a

dmitted tha

t the victi m’s state of mind wa s “absolu

tely irrelev ant to her

” in coming to the conclusion that the manner of death was homicide. On redir ect examination Dr. Jones testif ied that none of the

aforem entioned

factor s would have ch anged

her opini on beca

use she r outinely does not in

vestiga te a victi m’s state of mind in coming to her conclusion regar ding the manner of death. Dr. Jones then aga in reiterated that based upon “the evidence on the body and the evidence at the scene” she was convinced “bey

ond a reasonable medical and scientific ce rtainty” that this was a homicide a nd not a suicide. B. Defendant’s Case in Chief After the State rested, the defendant moved for a directed verdict, which was denied by the trial court. The defendant then procee ded with his cause and first called his brother, Nicky Munoz (hereinafter Nicky ) to testify on his behalf. Nicky testified that in September 1997 he lived with his parents at 1713 North Artesian Avenue. Nicky explained that there was a vacant lot between his residence and that of the defenda nt. Nicky stated that on the morning of September 8, 1997, he was inside the house, while his father was outside in the bac kyard with a24

couple of friends doing cement work. At about 12:20 or 12:30 p.m., Nicky was inside the bathroom on the south end of the house right next to the vacant lot, and the window in the bathroom was open , when he

heard th e defen

dant y elling f or help. Nicky

ran outsi de and sa

w his brother leaning out of a hallway window in his apartment yelling for help. Nicky

ran to the defendant’s residence, and as he climbed up the stairs he saw the defendant holding the victim. The defendant kept say

ing “she shot herself,” and then he plac ed the victim on the ground. Nicky then ra

n back to his house to telephone for help because the def endant did not own a phone. Nicky told the 911 dispatche r that the victim had shot herself. On cross-examination, Nicky a dmitted that he did not hear the gunshot, and therefore could not state how much time elapsed between the gunshot and his brother ’s cries for help. On cross-examination, Nicky also admitted that whe n he testified at the defendant’s previous trial on November 6, 2000, he never stated that when he c limbed the stairs he saw the defendant carry ing the victim, but rather had testified that “the victim [was] at the top of the steps and [the defendant was] just standing there *** just like frozen.” John Berrios, the defendant’s cousin by marriage, testified that at the time of the incident he lived across the street from the defenda nt. At about 12:20 or 12:30 p.m. that day, Be rrios was in front o f his house , when he heard so meone y

elling f or help f rom the bu

ilding r ight across where the defen

dant and t he victim l ived. Be

rrios ne xt observe d the def endant’ s father

and his brother Nicky

running from their house toward the building, and so he r an after them. Berrios entered the building and was climbing up the stairs whe n Nicky pushed down pa st him. Berrios climbed up the stairs and saw the victim on the ground bleeding a nd the defendant in the living room, screaming, holding his head and say ing “my ba

by shot herself, my

baby, my baby.”25

Berrio s stated that the de fendant appear ed to be in

shock, so he picke d him up and

helped hi m down the stairs and across the street to his house. Berrios lef t the defendant and ran back to ge t the children. After the police arrived, B errios escorted them to the defendant. Berrio s also test

ified tha t after t he victim had her la st child, a bout seve n months pr

ior to the incident, she seemed sad and depressed but did not want to tell any one what she was sad about. On cross -examinat ion, Ber rios admit

ted that h e never

heard a gunshot and ther efore c ould not tell how

much time e lapsed be

tween the gunshot and the c ommotion ou

tside. Be rrios als o acknowledged that at the defenda nt’s prior trial in November 2000, he did not indicate that he heard any one yell for he lp, but merely that he hea rd “some loud yelling .” Berrios also admitted that he never saw a gun in the apa rtment or the defendant throwing any thing out of his window. The defendant’s father, Cesar Munoz (her einafter Cesar), next testified that on the date of the incident, he lived with his wife and y ounger son, Nicky , at 1713 North Artesian Avenue. At about 12:30 p.m. Cesar was “doing some concrete work” in his backya rd, when he heard someone screaming for help. Cesar f irst did not see who was screaming but then he looked over to the def endant’ s building

and saw h

is son scr eaming “help me help me ** * Magg ie [the vic tim] shot herself.” Cesar immediately jumped the fence to the empty lot and ran toward the defendant’s building, where he ra n into Nicky, and they

climbed the stairs together. At the top of the stairs Cesar saw the victim lying on the ground and bleeding. Nicky then ran down to call for help and C esar fo llowed him

. Cesar also testified that prior to hearing the scre ams for help, he was standing in his alley with three men next to a cement truck, which was pouring conc rete. He stated that the truck was26

parked in the same alley

where the defendant’s ga rbage cans were loc ated, approximately 25 fee t away f rom him. Cesar averred that he never saw anyone ne

xt to the garbage cans that morning. On cross -examinat

ion, Cesa r admitte d that he never he ard a g unshot. The def endant’ s mother, Aida Muno z (herein after Aida), next testified that afte r the birt h of the victim’s last child, about seven months prior to the incident, the victim had become distant and did not permit Aida into her house. Aida also testified that she had conversations with the victim regarding the victim’s biological mother. Spec ifically, sometime in the summer of 1997, the victim indicated to Aida that she did not understand why her mother gave her up if she loved her. On another occasion, about two weeks prior to the incident, Aida remembered that the victim was very e

xcited because she was finally going to travel to meet her biologica l mother and wanted to purchase nice clothing to impress her. According to Aida, however, the victim’s moth er cance led th e visi t at t he las t min ute, a nd th e vict im bec ame ver y distant , star ted lo sing a lot of weight and her “teeth [started] deteriorating .” On cross-examination, Aida acknowledged that the victim’s weig ht loss occurred after her pre gnancy so

that it wa s not unusua

l. She also

testifie d that she

was not a

ware tha t the victi m was having an affair with Flore s or that Flores lived with the victim and her family . In addition, Aida admitted that she was not aware that the victim was unhappy with the defendant and wanted out of the relationship. The defendant next took the stand in his own defense. The defenda nt testified that the met the victim in 1994 on the train to Rantoul, where both of them were going f or a General Educational Development (GED) progr am. At that time, the victim already ha d a child with a man who wa s in prison . In Jan uary 1995, af ter gr aduating from the p

rogra m and ret urning t o27

Chicago, the defendant and the victim moved in toge ther into a studio owned by the de fendant’s family at 2452 West L eMoyne. While at this address, the victim and the de fendant had two children of their own. The defendant testified that he a nd the victim moved out of the apartment and into 17 07 North A

rtesian A venue be cause th ey

needed a larg er apar

tment. The defendant denied that he shot the victim. He also denied that he was aware that the victim and Flores were having an a ffair. According to the defe ndant, on the morning of September 8, 1997, he and the victim agreed that he was going to clean the place because they had a party

the night before, while the victim was going to go with Flores to apply for a job. The victim went to a local pawn shop and pawned his watch to buy milk for the children then

returne d home and

fell asle ep. When he woke up , he hea rd the ch ildren pla yin g and be came upset with the victim because she had not taken the children to the baby sitter. The defendant testified that he then borrowed his brothers truck and took the children with him to Luna Security to speak with the victim. On the ride home to the apartment, the defendant gave the victim a driving lesson. Once at the apartment building, the two of them were met by

Flores and another friend, who said they were going to buy

cigarettes and then return. The defendant and the victim went upstairs to the apar tment with their children. The defendant next testified that once inside the apartment, the victim told him to put the younge r children to bed, while she ran a bath for the oldest g irl. As the defendant was helping the middle child into bed, he heard the victim run into the bedroom and a door slam. The defendant stated that he also heard the victim cry ing. The defendant stated that he stood in front of the bedroom door asking the victim “what’s g oing on, *** open the door, what’s going on, why are you cry ing.” The defendant stated that the victim did not answer him and that he saw28

her shadow moving across the room from underne ath the door and that he then heard a drawe r open. The defendant noticed a nail on the floor, and a ttempted to pry open the locke d bedroom door, when he heard a loud pop. At that point the defendant just “burst throug h the door.” The defendant testified that he saw the victim sitting on the bed, “throwing up blood.” He stated that at that point he “just went crazy,” and started screaming for help. The defendant ran to the window an

d continue d to scre am for he lp, and the n he ran b ack to the

bed and g

rabbed t he victim and car ried her out. On cross-examination, the defendant admitted that during his prior trial in November 2000, he had testified that on September 7, 1997, he had a discussion with the victim about her desire to apply for

a job at Luna Security

and that he had asked her not to go to the job interview, but that she nevertheless went. On cross -examinat

ion, the de fendant

denied th at he own ed the g un, statin g that it belonged to Flores. He testified that the g un was kept in a drawer in his and the victim’s bedroom and that it was kept there for “protection.” The defendant also stated that there were bullets for the gun but that he did not know where they were and whether the gun w as loaded. When asked whether the victim had ever handled the g un, the defendant stated that he was not aware that she had, but she had been cur ious about the gun. The defendant admitted that on the morning in question he was ang ry at the victim for leaving him alone with the children and that he was still upset when they returned home from Luna Security

. When quest

ioned abo ut the sce ne of the crime on cross-e xamination, the defe

ndant cou ld

not reca ll what he did with the

nail that h e used to o

pen the do or with. T

he defe ndant als o could29

not recall where the gun was onc e he burst in through the bedroom door. He testified, howeve r, that he grabbed the victim underneath her armpits and carried her backwar ds out of the bedroom. The defendant later admitted that he dragged the victim facedown to the front door. On cross-examination, the defendant also stated that once he put the victim’s body on the ground by

the front door, he returned to the bedroom, picked up the g un and threw it out of the window into the garbage ca n while his father was standing next to him ye lling, “where is the gun, where is the gun.” The de fendant could not recall what the children wer e doing after the shoot ing, o r whet her th ey came out to see what w as wro ng. The def endant de nied havi ng cha nged hi s story

regar ding the disposal o f the gu

n in his conversations with Officer Rivera and Dete ctive Rutherford. The defendant admitted, however , that he had lied to police and at his first trial, when he stated that the gun be longed to him and that he f ound it in Re ese par

k, but he explained th at he had done so be cause he

“did not w ant to implicate anybody .” Dr. Shaku Teas was next qualified as an expert in forensic pathology and testified on behalf of the defendant. Dr. Teas a dmitted that she last worked for the Cook County medica l examiner’ s office

in 1991 an

d that sinc e then she

has been self-em ployed, appe aring i

n trials a s a forensic pathology

expert. Dr. Teas acknowledged that she was being paid $325 per hour for her testimony in this case. Dr. Teas stated that she did not perform an autopsy of the victim but that, instead, she reviewed the autopsy

reports prepared by

Dr. Jones, the autopsy photogra phs, the photographs of the scene of the crime, the police reports of the incident, and the transcripts of the prior proceedings in this case. Dr. Teas a lso testified that she reviewed three documents, which wer e6 Dr. Tea s explaine d that Nan cy Constable

is the mothe

r of the victim’s fr

iend, Eliza

beth Constable, and that her affidavit was consistent with that of her daug hter. Specifically , Nancy Constable’s affidavit stated that Elizabeth had told Nancy that “Maggie [the victim] had been losing weight and that she had said that she has ben throw ing up, intentionally throwing up,” and that “Maggie [the victim] told her [Elizabeth] that she did not care if she lived or died.” 30 not initially reviewed by

Dr. Jones when she made her original conclusion as to the manne r of the victim ’s death , immediat ely after th e autopsy

, namely two affi davits by

Nancy Constable 6 and Elizabeth Constable, and the interview of Carol Gonzales, which as discussed above, revealed that the victim had forced herse lf to throw up, did not care whether she lived or died, and atte mpted to c ommit suicid

e after the birth o f her fir

st child. A fter re

viewing all of the se documents, Dr. Teas concluded to a reasona ble degree of scientific ce rtainty that the manner

of death was suicide, resulting from a self-inflicte d gunshot wound. Dr. Teas explained that her conclusion was based on the following method: “Wheneve

r you have a

gunshot wound or a

ctually any question w

here y ou have to decide besides whether this is a suicide or whether it is a homicide, the f irst thing you would consider [is]: Is the wound and the direction of the wound consistent with being

se lf- inf lic te d [?] Is this wound in a part that’s acce ssible to the person and is [it] in the direction consiste nt with the

person ho lding a g

un in a ce rtain wa y. A nd once y ou see tha t it is consistent with the person inflicting the wound themselves, then y ou need to consider ancillary infor

mation to see whether there is any thing in the psychological make up of the person to say that the pe

rson would have inflicted this wound on themselves.”31

Dr. Tea s testifie d that in thi s case, her revi ew of the record s from Dr . Jones’ au topsy revealed that the location of the victim’s wound was consistent with being se lf-inflicted because: (1) the lo cation of

the entr ance of the wound

(the vic tim’s chin

and lip) w as “ver

y a ccessib le” to the victim; and (2) the direction of the wound (upward at an a ngle) was consistent with the victim holding the gun herself. She further stated that her conclusion that the wound was selfinflicted was corroborated by the fact that gunshot residue was found on the victim’s hand, but not on the hand of the defendant. Dr. Teas further testified that in coming to her c onclusion, she next performed a so-called psychologic al autopsy, by considering ancillary

information, namely the a ffidavits of the Constables and the interview of Gonzalez, to determine what the victim’s state of mind was prior to her de ath. Dr. Teas expla ined that based on the afor emention ed, she c oncluded that the victim had committed suicide because at the time of the incident she could have been suffering from bulimia and/or postpartum depression. On cross-examination, Dr. Teas admitted that she is self-employ ed and that she specializes in exhumations or “second autopsies” and is hired by “[e]ither families or lawyers,” but that she “occasionally do[es] coverage for *** coroners” a s well. Dr. Teas also acknowledged tha t the medical examiner’s office of Cook County does not routinely perfor m psy cholog ical auto

psies, but noted tha t there a re other examiner’ s office s in other jur isdictions that do pe

rform suc h autopsie s by

hiring a psycholog ist or psy

chiatris t to gather information about the victim to determine the victim’s backg round and state of mind prior

to de at h. Dr . T ea s s ta te d t ha t, in he r o pi ni on , t hi s c as e w ar ra nt ed su ch a p syc ho lo gi ca l a ut op sy, but that unfortunately such a n autopsy was neve

r performed.32

Dr. Teas conceded on cross-examination that she is not a psy chiatrist and that she had concluded that it was possible that the victim had suffered from postpartum depre ssion and bulimia based solely on the aff idavits of Elizabeth and Nancy Constable a nd the interview of Carol Gonzales. Dr. Teas admitted, however, that the affida vits of Elizabeth and Nancy Constable were g enerat

ed three ye ars afte

r the shoo ting and

that they were pr epared by d efense counsel. She also admitted that in coming to her conclusion she did not interview or meet Elizabeth or Nancy Constable or Carol Gonzales. C. The Stat

e’s Rebu ttal In rebuttal, the State first stipulated and defe nse counsel agreed that at a pr evious proceeding the defendant ha d testified under oath that at the time of the incident he weighe d 250 pounds. The State next recalled the victim’s sister, Lizette Hidalg o, who testified that although the victim was adopted when she was six months old, she had alway s been raised and considered one of the family, and the

refore never expressed sadness about be ing adopted. Hidalgo further testifie d that the

victim love d her chi ldren an d never a ttempted t

o commit sui cide af

ter the b irth of her first child. According to Hidalg o, the victim was generally a happy pe

rson, but she was unhappy with her r

elationship with the defendant. Hidalgo stated that she was awa re that the victim was having an affair with Flores a nd that she was happy

with him. The State then cal led Merc e Lop ez, anothe r one of t he victim’ s sisters, who simila rly testified that the victim was six months old when she was adopted and never expressed any sadness a bout this. L

opez also t

estified that the victim had b een a ha ppy person pr

ior to Septembe r 8, 1997, that she never at tempted to

commit suic ide afte

r the birt h of her f irst child33

and that Lopez had never obser ved any sig

ns that the victim was making herself throw up. Luce Rosario, the victim’s adoptive mother, conc urred that she adopted the victim when the victim

was six month s old and th at her sis ter, the victim’s b iologic al mother , lived in Arlingt on, Pennsy

lvania. Ro sario tes tified tha t she had a

lway s conside

red and t reated the victim as her ow n child an d that the victim nev er expre ssed sadness about being a dopted. Ro sario testified that the victim was a happy person and that she had never expressed suicidal thoughts. The State also rec alled Fl ores, who testifie d that the re was no party

at the victim’s house on the nig ht prior to the shooti

ng and t hat the de fendant

theref ore woul d have ha

d no reas on to clean the house on the morning of the incident. D. Verdict and Sentence After rebuttal, the parties proceede d with closing arguments. After delibera tions, the jury returned a verdict finding the defe ndant guilty of f

irst-degree murder, and the de fendant was subsequently sentence d to 45 years’ imprisonment. The defendant now appeals. II . ANAL YSIS On appeal, the defendant arg ues that the trial court committed reversible error when: ( 1) it admitted into evidence hearsay statements made by the victim; (2) when it permitted two police officers (Detective Rivera a nd Detective Rutherford), neither of whom was qua lified as an expert in g

unshot re sidue tes ting, to t estify about g unshot re sidue tra

nsfere nce; (3) when it permitted the State’s expert forensic pathologist, Dr. Jones, to invade the province of the jury by testifying that the ma

nner of the victim’s death was “homicide bey ond a reasonable degree

of medical certainty ,” and by opining as to the credibility of the de fendant’s statements to police that the victim’s death was a suicide caused by depression; and (4) when it permitted Detective34

Rutherford, who questioned the defendant immediately after his arrest, to testify

as to the ultimate issue of the defendant’s credibility . The defendant also argues that his conviction should be reversed because the prosec utor engaged in perva sive misconduct during closing argument, improperly

shifting the burden of proof onto the defendant. F inally, the defenda nt challenges the sufficiency of the evidence used to convict him. We will address each of the defendant’s contentions in turn.

A. He ar sa y St at em en ts Re ga rd in g t he De fe nd an t’ s J ea lo us y The defendant’s first contention on appeal is that the trial court e rred when it permitted Flores, the victim ’s lover , to testif y to certain hearsa y st atements made to hi

m by the victim while she was alive . Specifi cally , the def endant po ints to the t

estimony of Flore s that dur

ing his relationship with the victim, the victim told him that the defendant was “jealous of her” and that he “wanted to know where she was and w hat she was doing all the time.” The State arg ues that these statements by F lores were properly admitted by the trial court unde r the state-of-mind hearsa y exception. I

n the alte rnative , the State

contends that eve n if admiss ion of the se statements was made in error, any such error would necessarily have been harmless. For the reasons that follow, we disagree with the State. We begin with the well-settled principles regar ding the inadmissibility of hearsa y evidence and the relevant exceptions thereto. Hea rsay evide

nce consists of “an out-of-court statement offered to prove the truth of the matter asse rted” and “unless it falls within an exception to the hearsay

rule,” this type of e

vidence “is generally

inadmissible due to its lack of reliability” and the inability of the opposing party

to confront the declarant. People v. Caffey , 205 Ill. 2d 52, 88, 79 2 N.E. 2d 116 3, 118 7 (200 1), qu otin g People v. Olinger , 176 Ill. 2d 326,35

357, 680 N.E.2d 321 (1997); see also People v. Dunmore , 389 Ill. App. 3d 1095, 1106, 906 N.E.2d 1233, 1244 (2009). Under the state-of-mind exception to the hearsay rule, a hearsay statement may be a

dmissible if it “[expresses] the declaran t’s state of mind at the time of the utterance,” i.e. , the declarant’s intentions, plans or motivations at the time of the utterance. (Emphasis added.) People v. Lawler , 142 I ll. 2d 548, 5 59, 568 N. E.2d 895 ( 1991). Ou r suprem e court has explained that any suc h state-of-mind utterances will be admissible only if: (1) the declarant is unavailable to testify , (2) there is a reasonable probability that the proffered hearsay statements are truthful, and (3) the statements are re levant to a material issue in the case. Caffey , 205 Ill. 2d at 91, 792 N.E.2d at 1189; see also Pe op le v. Fl oyd , 103 Ill. 2d 541, 546, 470 N.E.2d 293, 295 (1984). A trial court’s evidentiary rulings on hearsay

testimony are re

viewed under an abuse of discreti on standa

rd, and a n abuse o f discre

tion will be

found only

where the trial c ourt's r

uling is “arbitrary , fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court.” Caffey , 205 Ill. 2d at 89, 792 N.E.2d at 1187. In the present case , the record reveals that, over def ense counsel’s objection, the State’s key witness, Flore s, was permitted to testify that while she w as alive, the victim had told him that she was tired of her relationship with the defendant, that she wa s unhappy with him and, more significantly, tha

t the defendant was “jealous of her,” a nd that he “wanted to know where she was and what she was doing all of the time.” Even thoug h defense counsel objected to this line of questioning, the prosecutor interjected explaining, “[the evidenc e] is not offered to show the truth ***. It’s offer[ed] to show [the victim’s] state of mind and the state of the relationship.” The trial court agreed with the prose cutor and permitted Flores’s testimony to stand.36

Based on this record, the State arg ues that the trial court properly exercised its discretion in permitt ing Flo res to tes tify

regar ding the victim’s s tatement s, becau se those s tatement s fell well withi

n the rec ognized s tate-of

-mind exce

ption to the

hearsa y r ule. The State spe cifical ly contends that these statements met the three requirements nec essary f or their admissibility under the state -of-mind

hearsa y exception. F irst, the St ate cont ends that the decl arant wa s unable t o testify as she wa s dead. Second, the State asserts that the victim’s statements must have been truthful because “she was discussing her f eelings and concerns with someone she wa s involved with, a close and trusted friend.” Finally, with respect to relevance, the State makes two argume nts. The Sta

te first c ontends th at beca use in its pr

ior reve rsal of th is case, this appe llate court held that the victim’s state of mind ( i.e., her possible suicidal tendencies) was a material issue in the case, any

statements made by the victim which expressed the victim’s mental impression at the time of the incident were relevant and admissible. Second, the State a rgues that these particu lar state ments by the victim , that the

defenda nt was jea

lous of he r, indire ctly express the victim’s fear of the defendant, so as to neg ate the defendant’s theory of suicide. For the reasons that follow, we disagree w ith the State. The rule is clear that the state-of-mind exception applies only to a contemporaneous statement of the unavailable declarant and whe re such a statement by

that unavailable declarant explains the state of mind of the declarant and not the state of mind of someone other than the declarant. See Lawler , 142 Ill. 2d at 559, 568 N.E.2d 895; see also People v. Cloutier , 178 Ill. 2d 141, 155, 687 N.E.2d 930, 936-37 (1997) (noting that the State misunderstood the state-of-mind hearsa y exception be cause un

der that exception , “an out- of-cour t stateme nt of a de lcaran

t is admissible [only] when that statement tends to show the declaran t’s state of mind at the time of37

the utterance” (emphasis in original)); se e also 6 L. Pieczy nski, Illinois Practice §23:67, at 402- 03 (2d ed. 2005) (The state-of-mind hearsay exception “only applies to statements made by the declarant regarding

his or her intention and not those of a third person”). Equally significa

nt, and as already

noted above, “in order to be admissible, the declaran t’s state of mind must be relevant to a material issue in the case.” (Empha sis in original.) Cloutier , 178 Ill. 2d at 155, 687 N.E.2d at 936-37. Evidence is re levant if it has “ ‘any tendency to make th e existenc e of any fact in c onseque

nce to the determination of the action more or le ss probable than it would be without the evidence.’ ” People v. Coleman , 347 Ill. App. 3d 266, 270 806 N. E.2d 1 113, 1 117-1 8 (200 4), qu otin g People v. Hope , 168 Ill. 2d 1, 23, 658 N.E.2d 391 (1995). E vidence may be reje cted as i

rrelev ant “if it

has little probativ e value d

ue to its remoteness, uncertainty , or possibility of unfair prejudicial na ture.” People v. Harvey , 211 Ill. 2d 368, 392, 813 N.E.2d 181 (2004). Under these well-settled principles, the victim’s hearsay statements that the defendant “was jealous of her” and “wante d to know where she was and what she was doing all of the time” wou

ld not be a

dmissible f

or the tru th of their content. If a

nyt hing, the ir admissi

bility would have to be premised upon each statement’s reve lation of the victim’s state of mind, namely, the disclosure of her subjective impression that she considered her husband to be jea lous of her. In no event, however , would the statements be admissible as evidence that the defendant was in fact jealous of her or that he wanted to know w here she was all of the time, since that would be a

n admission

of the sta tement for the trut

h of its co ntent and , theref ore, ful ly s

ubject to the hearsay

exclusion. Caffey , 205 Ill. 2d at 89, 792 N.E.2d at1187; see also Dunmore , 389 I ll. App. 3d at 1106, 906 N.E.2d at 1244.38

In order to justify

such limited admissibility, the purpose for which the statements ar e admitted, namely, the victim’s subjective impre ssion that the defendant was jealous of her, would have to be relevant. Obviously , the risk that the trier of fact would not be able to make the substantive distinction between the victim’s state of mind, i.e. , her subjective impression, and the actual f act desc ribed in h er state

ments, co uld only be justifi ed if the

victim’s s tate of mi

nd would have fully indepe

ndent relevancy

to the issues in the case. Thus, we must confront the question to deter mine to wha

t extent, if

any , the vict

im’s impre ssion that her husba nd was je alous of h er is probative of any

material issues in this case. As shall be discussed below, we fail to find that any such relevancy

exists. We acknow

ledge t hat in our previous appella te court decision we held that the victim’s declarations revealing her suicida l state of mind would have been admissible at the defendant’s trial, since they we

re highly relevant to the determination as to whether the defenda nt committed suicide, which was a material and dispositive issue in the case. See People v. Munoz , 348 I ll. App. 3d 42 3, 810 N.E .2d 65 (20 04). Thos e stateme nts by the victim , which we

re rele vant in establishing her suicidal motivations, included the proffered testimony by two of the victim’s friends: (1) Elizabeth Constable, who would have testified that, about a month prior to the incident , the vict

im had told her that she “felt l ike killing herself ” and tha t, about a week pr ior to her death, she indicated that “she was making herself vomit to lose weight” and stated that “she did not ca re if she lived or d

ied” and (2) Caro l Gonzales , who woul d state tha t in 1993 the

victim told her that she had previously attempted suicide. However, we find nothing in the victim’s proffer ed hearsay

statements regarding her impression that the defendant was “jealous of her” a nd “wanted to know where she was all the39

time” tha t would ha

ve any independ ent rele vance to the issue s in this ca se. Ther e is no bas is upon which to presu

me that the

victim’s s tate of a

warene ss of the d

efenda nt’s jeal ousy

would

cause or discoura ge any suicidal i nclinations. The on

ly p ossible re levancy

would be t

o establish motive on part of the defendant to kill her. As such, the sole function in admitting those hear say statements would be to use the state-of-mind hearsay exception as a back door to convey the hearsay of the out-of-court declarant (the victim) to the jury for the truth of their patent content rather than as the basis of their latent content in establishing the victim’s own state of mind. Howeve r, that is precise ly w

hy t hose stat ements a re not ad missible sin

ce any use of the

m to establish the defe ndant’s motive wou

ld be a use

to establi sh the tru

th of their content, which is exactly what the hea

rsay rules of

exclusion are designed to avert. See Cloutier , 178 Ill. 2d at 154-56, 6 87 N.E.2d

at 936-37 ; see also Harvey , 211 Ill. 2d at 392, 813 N.E.2d at 181. This latter forbidden use was highlighted in the State’s opening argument in which the prosecutor asserted that the defendant killed the victim in a fit of jea lous rage, attributing to the defend ant th is mo tivat ion b y statin g: “[T]he def

endant’ s nature

was one o f jealou sy, was one o f contro l. *** [The v ictim] needed to be where he could control her , where he could watch her. *** He [the defenda nt] couldn’ t sit there

and watc h his child

ren for that shor t amount of

time beca

use of the je alousy

and the r age. * ** But wh en y

ou’re ha ppy and y ou are with a jeal ous, controlling man, you a

re in danger.” As shall be discussed in more detail below, the defendant’s jealous ra ge has no other source on the record other than the hearsay statements of Flores. The State, nevertheless, cites to Fl oyd , 103 Ill. 2d at 546, 470 N.E.2d at 295, contending40

that it was proper for the circuit court to admit the victim’s statements that the defenda nt “was jealous o f her” a

nd “want ed to know

where s he was a

ll of the ti me,” bec ause thos e stateme nts reflected on the victim’s fear of the def endant, so as to negate any possibility of a suicide. The State con tends tha t Fl oyd stands for the proposition that a victim’s statements of fear of the defendant may

be used to rebut the defendant’s theory that the victim did not die as a result of a homicide . We disag

ree, an d find tha t the State misinterprets Fl oyd , 103 Ill. 2d at 546, 470 N.E.2d at 295. In Fl oyd , the defendant was charge d with the murder of his wife, who had died by drowning, in a nearby

creek. Fl oyd , 103 Ill. 2d at 543, 470 N.E.2d at 294. At trial, the defenda nt argued that the victim had died as a result of an a ccident and objected to the introduction of statements that the victim had made to several witnesses prior to her death indica ting that she was afraid of the defendant. Fl oyd , 103 I ll. 2d at 54 4-45, 470 N.E.2d a t 294-95. T

hese statements included, among other things: (1) the victim telling her father-in-law that she had given her two children his telephone number “a nd said if anything

happened to her, would [he] come and get the children at once,” (2) the victim telling her divorce attorney that there was “the possibility

of physical viol ence” a

nd that he then advi sed her t

o contac t the sher

iff to pre pare him in the event that she needed to call him about such violence; and (3) the victim telling her 15- year- old daughter that she was concerne d for her own safety and instructing her that if “there was trouble or something,” that the daughter c all her grandparents. Fl oyd , 103 Ill. 2d at 544-45, 470 N.E.2d at 294-95. The circuit court permitted these statements by the victim into evidence under the state-of-mind hearsay exception, and the appellate court reversed. Fl oyd , 103 Ill. 2d at 546, 470 N.E.2d at 295.41

In affirming the

decision of the appellate court, our supreme court in Fl oyd held that the statements by the victim that she fea red the defendant were inadmissible as her sta te of mind of fear wa s irrele

vant to an y ma terial is sue at tri al and se

rved no in

depende nt purpose

other tha n to create the inference that the vic tim’s fear was in fact caused by threats and other intimidating conduct by the de fendant, and that the defendant was g uilty of murder. Fl oyd , 103 Ill. 2d at 546, 470 N.E.2d at 295. Specifically , our supreme court held that the victim’s statements expressing her fear of the defendant we re irrelevant because they did not increase or decrease the likelihood that the victim acted in a manner relevant to establishing that her death, i.e. , the drowning in the creek, was not a result of an acc ident. Fl oyd , 103 Ill. 2d at 548, 470 N.E.2d at 296. As our supreme court noted “the evidence [presented a t the defendant’s trial] showed that the deceased voluntarily accompa

nied the defendant on the evening of he r death and that they

had spent the evening drinking and dancing .” Fl oyd , 103 Ill. 2d at 547, 470 N.E.2d at 295. Although the State is correct that our supreme court in Fl oyd acknowledged that “evidence of the state of mind of the dece ased may be relevant when it serves to rebut the defense of accident,” Fl oyd makes clear that evidence of the dec larant’s fearful state of mind may not be used to show, by infer ence or otherwise, that the defendant a cted in a manner to warrant the declarant’s fear but that instead it may be used only to show that the dec larant herself was feeling or manifesting that fea r. Fl oyd , 103 Ill. 2d at 547, 470 N.E.2d at 295. Moreover, Fl oyd holds that the declarant’s statements evidencing her state of fear will be relevant if that state of mind in and of itself would be probative in showing that it caused the declara nt to act in a manner that would make death by accident less probable. Fl oyd , 103 Ill. 2d at 546, 470 N.E.2d at 295.42

In the present case, e ven if the State is correct in

its asser tion that th e victim’ s stateme nts that the “ defenda

nt was jea

lous of he r” and th at he alw ay s “wante d to know w here she was” could be interpreted as a basis from which to infer that he r state of mind was fear of the defendant, as noted above, that state of mind ( i.e. , her fear) would be irreleva nt in determining whether she possessed a suicidal motivation. We fail to see how the victim’s fear of the defendant could sufficiently increase or decrease the

likelihood that she could take her own life, nor does the State assist us in reaching any such conclusion. Any such spe culation must be weighed against the likelihood that the jury will have difficulty foc

using and retaining only

the indications of the victim’s state of mind while rejecting and discarding the factual content of the statements from which her state of mind could be inferred. This is par ticularly true he

re, where there was no evidence presented a t trial that as a result of this alleged fear the victim was forward looking r ather th an suicid

al, and th at she inte

nded to pu

rsue her relation ship with F lores, so as to in any way

decrease the likelihood that she may have taken her own life. I n fact, Flores testified at trial that he and the victim had no intention whatsoever of revealing their affair or leaving the defendant’s household to pursue their relationship on their own. Accordingly , we find that the admission of Flores’ testimony regarding the victim’s statements that the defendant was jealous of her was ma de in error. See, e.g., Lawler , 142 Ill. 2d at 559, 568 N.E.2d 895 (holding that a telephone conversation betwe en the alleged victim of an aggravated cr

iminal sexual assault and her father, which took place while the defe ndant was nearby c ould not be admitted under the exception to the hearsay rule for statements indicating declarant’s state of mind to show that the defendant had a g un and that the victim could not get away ); Cloutier , 178 Ill. 2d at 154-56, 687 N.E.2d at 936-37 (holding tha t a detective’s43

testimony about conversations in which seve ral victims described how they were attacked by

the defendant was not admissible in a death-penalty -eligibility phase of

capital sentencing hearing under the state-of-mind hearsay exception because the declarants’ states of mind when they spoke with the detective had no bearing on the de fendant’s state of mind when he killed the victim); see also People v. Davis , 254 Ill. App. 3d 651, 626 N.E.2d 1187, (1993) (holding that state-of-mind hearsay

exception did not apply to hearsay testimony of the defenda nt’s mother, who stated that the defendant told her that he carrie d a gun for protection because he was previous ly s truck on t

he head and seve rely injured, since this

statemen t was cle arly

irrelev ant to any materia l issue at t

rial, the dominant one of whi ch was whether th e defen dant was responsi ble for the victim’s death). The State neverth eless co ntends tha t even if the victim ’s statements wer e introdu ced in error, any such error would necessarily be harmless. We disagree. Our supreme court has held that erroneous admission of hea rsay evide

nce will be considered harmless only “ ‘where there is no reasonable probability that the jury

would have acquitted the defendant absent the hearsa y testimony .’ ” People v. Sims , 192 Ill. 2d 592, 628-29, 736 N. E.2d 1 048 (2 000), quot ing People v. Nevitt , 135 Ill.2d 423, 447, 553 N.E.2d 368 (1990). In the present case , the State has failed to establish that the improperly admitted evidence did not con

tribute to the defe ndant’s c onviction , as the e vidence in this cas e was re latively closely balance d. Specif

ically , the rec ord below

reveal s that ther

e were no ey ewitness es to this shooting, that no prints were found on the gun that were suitable for comparison, that the victim’s hand, rather than that of the defendant, tested positive for g unshot residue, and that the victim’s wound was a close-range c ontact wound, indicating the possibility that it was self-44

inflicted. In addition, the State failed to provide a single witness who would testify that he or she heard any argument, or fight coming f rom the victim’s apartment. Moreover, in our earlier Munoz decision, we noted that the closely balanced nature of the evidence presented at the defendant’s trial was apparent from the f act that this case has been tried more than once, w ith the first trial resulting in a mistrial as a result of the jury ’s inability to reach a verdict. Munoz , 348 Ill. App. 3d at 439, 810 N.E.2d at 78. More overridingly , the prejudice to the defendant resulting fr om the improper admission of the ev idence i s plain sinc e, as alr eady noted above, the he arsay imputed to t

he defe ndant a motive to commit the crime. As previously noted, no other e vidence whatsoever was offer ed at trial to suggest that the defendant was in fa ct jealous of the victim, or to establish that the defendant had a motive to kill her. In f act, although it was undisputed at trial that the victim and Flores engage d in a secret, romantic love affair, while the victim shared an apartment with the defendant, Flores and her children, the State presented no evidence whatsoever to e stablish that the defendant knew of this affair. Flore s himself testified that to his knowledge the defendant never became aware

of the affair, since he and the victim took pains to hide it. Even Detec tive Rutherford, who in

terview ed the de fendant

on the nig

ht of the in

cident, a dmitted tha

t during his interview, the defendant never mentioned or indica ted to him in any way

that he was aware of the affair between the victim and Flores. Ye t, as already

noted above, in opening argument the prosecu tor made it a point to

argue that the d

efenda nt’s motive

in killing the victim

was his jealousy. Acc ordingly, the he arsay state ments offered by

Flores’ testimony we

re not cumulative of any other

properly a

dmitted evidence, but provided the State with the requisite evidence of motive necessary

to convict the defendant, thereby clearly c ontributing to the defendant’s45

conviction. See, e.g., Lawler , 142 Ill. 2d at 559, 568 N.E.2d 895 (holding that telephone conversation of alleged victim of ag gravated criminal sexual assault with her father tha t took place while defendant was nearby could not be admitted under exception to hearsay rule for statements indicating declarant’s state of mind where the prosecution did not use the

convers ation sole ly to

evidenc e the vic tim’s state of mind concernin

g wheth er she c onsented

to intercourse but, rather, specifically used the conversation as substantive evidence that defe ndant had a gun and that the victim could not get awa y). As such, we

conclude that the improper admission of these statements was prejudicial and requires reve rsal. B. Dete ctive Ruth erford ’s Testimony R egard ing the D efenda

nt’s Cred ibility We further note that the defendant’s conviction is reversible on the following independent ground. As previously noted, during direct examination, Detective Rutherford testifie d that on th e night o f the inc ident he s poke to the

defenda nt three times and t

hat each time he infor med the de fendant

that he “ did not bel ieve” hi s version of event s becaus e of cer

tain discrepancies in the defendant’s acc ount. Detective Rutherford also testified that throughout that night, the defendant continued to change his story, providing him with a slightly different version of events during each of the three interviews. On redirect examination, Detective Rutherford finally testified that he did not believe tha t “the defendant ever told [him] the truth” that night. The def endant c ontends th at the ad mission of t

he afor emention ed testimony w as made i n error as that testimony usur ped the province of the jury on the ultimate issue of the defendant’s credibility. The State conc edes that under Illinois law a witness is not permitted to comment on th e v er ac it y of

an ot he r w it ne ss ’ c re di bi li ty ( People v. Kokoral eis , 132 Ill. 2d 235, 264, 547 N.E.2d 202, 264 (1989)), but nevertheless contends that, here, De tective Rutherford did not46

comment o n the ver

acity of the de fendant

but, rath er, quite

permissib ly, explained

his investigating procedure. For the reasons that follow, we disagree w ith the State. We first no te, and th e defen dant ack nowledg es that he

has not pr

operly preser ved this issue for review by f

ailing to raise it i n his motion f

or a new trial. People v. Enoch , 122 Ill. 2d 176, 190, 5 22 N.E.2d

1124, 1131 -32 (1988 ). Defe ndant nev erthele ss argu

es that we should review this issue under the plain error analy sis. People v. Herron , 215 Ill. 2d 167, 178-80, 830 N.E.2d 467, 475-76 (2005). The plain error doctrine per mits a reviewing court to by pass normal forfeiture principles and consider unprese rved error under two circumstance s: (1) where the evidence in a case is so closely balanced that the error threatene d to tip the scales of justice agains t him ( i.e. , the jury’s g uilty verdict may

have resulted from the error and not the evide nce) and (2) w here the error is so seriou s that it af

fected a defen dant’s su bstantial rights, and thus a fair trial. Herron , 215 Ill. 2d at 178-79, 830 N.E.2d at 475-76. Since we have already

found above that the evidence in this case was closely balanced, we may a nd will review the issue under the plain error doctrine. See Herron , 215 Ill. 2d at 178- 80, 830 N.E.2d at 475-76. We proceed therefore by considering whether Detective Rutherf ord’s testimony was admitted in error. In that respect we f

irst acknowledge that in I llinois a police officer may recount the steps taken in the investigation of a crime, and that he may describe the events leading up to a defendant’s arrest, where suc h testimony is necessary

and important to fully explain the State’s case to the trier of fact. People v. Simms , 143 Ill. 2d 154, 174, 572 N.E.2d 947, 954-44 (1991); see also People v. Williams , 233 Ill. App. 3d 1005, 1016-17, 599 N.E.2d 1033, 1040-41 (1992). We note, however, that contrary to the State’s assertion, the record below firmly establishes that47

during redirect examination, Detective Rutherford we nt far bey ond merely desc

ribing the steps he took in t

he invest igation of this cr ime. As the

transcr ipt of the t

rial proc eeding s, revea

ls, durin g redirect examination, the following colloquy took place between Detective Rutherford a nd the Assistant State’s A ttorney : “Q. [ASSISTANT STATE’S ATTORNEY:] And let me ask something, he neve r did tell you the truth in y

our mind, did he? A. [Detective Rutherford:] No, sir. [DEFENSE

COUNSEL :] Objection, the off icer’s m ind is irre levant. [ASSIST ANT STATE ’S ATTORN EY:] Well, we

just probe d his– THE COURT: Sustained, go on. Q. [ASSISTANT STATE’S ATTORNEY:] In y our mind he never told you the truth, did he? DEFENSE COUNSEL: Same objection. THE COURT: He can answer. A. [Detective Rutherford:] No sir.” This testimony followed two earlier statements made by De

tective Rutherford during direct examination, indicating that he did not “believe” the defenda nt’s first two versions of the incident. Even though it could be argued that the f irst two statements by Detective Rutherford explained the sequential logic of his investigation ( i.e ., the detective pointing out to the defendant the discrepancies in eac h of the defendant’s version of the events, then lea ving the interview room to permit the defendant to “think it over,” before r eturning to the interview room48

to question him again), that reason cannot apply to Detective Rutherford’s last statement, that he simply did not believe that the defenda nt ever told him the truth that night. This statement no longer points to a sequential account of the interview pr ocess and would therefore have no appa rent purp ose o ther

than to inv ade t

he pr ovinc e of t

he ju ry and t ell th em wh o to be lieve . We especially f

ind this statement by Detective Rutherf ord troubling because it was not made sua sponte but was rather specifically elicited by the prose cutor, who, despite defense counsel’s objection, continued to repeatedly ask the detective on redirect examination, “he never told you the tru th, did he ?” Accord ingly , since th e admission of this te stimony served n o other pu

rpose but to impermissibly comment on the ultimate issue of the defenda nt’s credibility, we find that it was made in error. See, e.g., People v. Crump , 319 Ill. App. 3d 538, 542-43, 745 N.E.2d 692, 696-97 (2001) (holding that a police officer’s a ffirmative response as lay witness to prosecutor’s question c oncerni

ng whet her, dur ing the c ourse of

his investi gation, the offic er had r eason to believe that the defendant committed the offense, wa s inadmissible because the question usurped the province of the jury

and asked for the officer to comment on the ultimate disputed fac t in the case); see also People v. Hooker , 253 Ill. App. 3d 1075, 1088-90, 625 N.E.2d 1081, 1092-93 (1993) ( holding t hat it was improper to permit a

police de tective t o testify as to his be lief that

a defendant was guilty , as this pertained to the ultimate issue of fact; specifically holding that the following testimony

should not have bee

n admitted : the dete ctive’s s tatement that at a c ertain point during his interview of the defendant he rea lized that the defendant was “being dece ptive,” and later that this was “the point when [the detective] was sure that-that [the defendant] was –that [the defendant] was guilty of what the allegations were”).49

The prejudice stemming from this error is obvious given the r elatively closely

balanced nature of the evidence presented a t trial and the fact that the ultimate issue in this case concerned the believability of the State’s ve rsus the defendant’s version of events of the nig ht in question, i.e. , whether the defendant was telling the truth whe n he claimed that on the date in question the victim committed suicide. Consequently, permitting Dete ctive Rutherford to testify tha t “he never be lieved th at the de fendant told him the

truth” on the nigh t in question essenti ally translates into him instructing the jury not to believe the defendant. This is particularly true where D etective

Rutherford is a pol ice off icer, a nd there fore a “ figure

of author ity, ” whose testimony the jury

likely would have cr

edited with more weight. See Crump , 319 Ill. App. 3d at 542-43, 7 45 N.E.2d

at 696-97 (holding

that a pol ice off

icer’s t estimony that he ha

d reason to believe that “the defenda nt committe d the off

ense” w as espec ially

prejudic ial beca

use as a “figure of authority

” he was informing the jury that it should believe a portion of the prosecution’s case). According ly, for all of the a forementioned reasons, we find that the

er ro ne ou s a dm is si on of

De te ct iv e R ut he rf

or d’ s t es ti mo ny a lo ne , a s w el l a s c um ul at iv el y, prejudiced the outcome of the defendant’s trial.

C. The State’s Pathologist’s Attempt to Invade the Province of the Jury Since the aforementioned errors alone a re sufficient to require a reversal, we need not determine the remainder of the defenda nt’s contentions of error on appeal. We do, however, briefly dwe ll on one last contention as it may g uide the conduct of the parties on retrial. Specifically, we

address the defendant’s arg ument that the State’s expert forensic pathologist, Dr. Jones, improperly and prejudicially invaded the province of the jury by testify ing that her conclusion that the manner of death was a homicide was r eached “bey

ond a reasonable degree

of50

medical certainty .” We previo

usly revers ed the de fendant ’s secon d trial for the re ason, among othe rs, that in rendering her opinion as to the manner of de ath being homicide, the pathologist used the terminology of

the legal standard “bey

ond a reasonable doubt” thereby invading the province of the jury as to the ultimate issue of the de fendant’s guilt. See Munoz , 348 Ill. App. 3d at 440, 810 N.E.2d a t 79. While th e term “b eyond a rea sonable d egree of medic al and sc ientific certain ty” is not identical to the phrase “bey ond a reasonable doubt” it echoes the leg al standard which the expert pathologist was clearly prohibited from using. See Munoz , 348 Ill. App. 3d at 440, 810 N.E.2 d at 79 , citi ng LI

D Associates v. Dolan , 324 Ill. App. 3d 1047, 1058, 756 N.E.2d 866, 876- 77 (2001), and Sohaey v. Van Cura , 240 Ill. App. 3d 266, 283-84, 607 N.E.2d 253, 267 (1992). The def endant c ites to a li

tany of case s that show

that the expert was r

equired to rende r his opinion within “a reasonable degree of scientific certainty

” (see, e.g. , People v. Williams , 209 I ll. App. 3d 70 9, 721-22 , 568 N.E. 2d 388, 395 (1991); Baird v . Adeli , 214 Ill. App. 3d 47, 65, 573 N.E.2d 27 9, 290 (19 91); Knauerhaze v. Nelson , 361 Ill. App. 3d 538, 549, 836 N.E.2d 640 (2005)). However, these cases use the standard of “reasonable scientific c ertainty” a s a floor, not a ceiling. The defendant fails to cite a ny case indica

ting that this standard could not be exceeded so as to prohibit any opinion to be given be yond a rea sonable degree of scientific c ertainty. On the other hand, the State like

wise prov ides us wit

h no autho rity

to show tha

t an exper t could venture an opinion bey

ond a reasonable degree

of scientific certainty . In light of the fact that the description of certainty

attested by the patholog

ist in this cases uses language that is sugg estive of the legal standard “bey ond a reasonable doubt” and in view of the fac t that we reversed the defendant’s earlier conviction on the basis that the use of this leg al standard improperly invaded51

the province of the jury , we would suggest that it is best that this terminology be avoided on retrial. However, we make no ultimate deter mination at this time as to that issue. III. CONCL

USION Accordingly , for all of the reasons set forth above, we f ind that the aforementioned errors individually, as well as cumulatively , prejudiced the defendant’s procee dings so as to require reversal for a new trial. We theref ore reverse and remand for a new trial. Reversed and remanded. CAHIL L, P.J., and ROBERT E. GORDON, J., concur.52 __________________________________________________________________________________________________________________________ REPORTER OF DECISIONS - ILLINOIS APPELLATE CO URT

(Front Sheet to

be Attached to Each Case)

_________________________________________________________________________________________________________________________ Please use

the follow

ing form THE PEOPLE OF THE STATE OF IL LI NOIS, Plaintiff-Appellee,

v. CESAR MUNOZ Defend ant-App ellant.

______________________________________________________________________________________________________________ No

. 1-08- 0645 Docket No. Ap pellate Co urt of Illino is COURT First D istrict, SI XTH Divi sion Opinion File d Febru ary 11, 2010 (Give month, day and year)

______________________________________________________________________________________________________________ JUS TIC E J OSE PH GOR DON DE LI VERE D THE OP INI ON OF THE C OURT: JUSTI CES JUST ICES C AHILL and RO BER T E. G ORD ON , concur.

Lower Court and Trial Judge(s) in form indicated i n margin: APP EAL from the Circuit Court of Cook Ap pea l from the Circu it Cou rt of Co ok C ounty; County ; t

he Hon___ Judge Presiding. The H on. Marcus R. Salone Judge pres iding.

__________________________________________________________________________________________________________________________ Indicate if attorney represents APPELLANT S or APPELLEES and include attorney's of counsel. Indicate the word FOR APPELLANTS NONE if not represe

nted. John Do e, of Chicago For APPELLE

ES, : FOR APPELLANT:_Kathleen T. Zellner, Douglas H. Johnson and Nicholas M. Curran, Kathleen T. Zellner & Associates,

2215 N. York R

oad, Suite 504, O akbrook, I L 60523; tele

phone: (630) 955-1212 Smith and Smith of Chicago , APPELLEE: Anita A lvarez , State’s Attorney

, Jame s E. Fitzg

erald, A lan J. Spell

berg, and Ma

tthew Connor

s, Ass istant States Atto rneys, Office of the Il linois State’s Atto rney, Cook Co unty, Rich ard J. Daley Cent er, Room 30 9, Chicago IL 60602

_____________________________________________________________________________________________________________ Add attorne

ys for thirdparty a ppellants a

nd/or appellees.