People v. Leach
Ill.
ILLINOIS OFFICIAL REPORTS
Supreme Court
People v. Leach, 2012 IL 111534
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. CURTIS
Court: LEACH, Appellant.
Docket No. 111534
Filed November 29, 2012
Held A bench murder conviction was upheld for a defendant who admitted he
(Note: This syllabus strangled his wife to death but claimed it was an accident where expert
constitutes no part of testimony as to the time it would take to die from strangulation permitted
the opinion of the court an inference of knowledge of a strong probability of death or great bodily
but has been prepared harm—retired medical examiner’s routine autopsy report finding the
by the Reporter of death homicidal not testimonial for purposes of Crawford rule.
Decisions for the
convenience of the
reader.)
Decision Under Appeal from the Appellate Court for the First District; heard in that court
Review on appeal from the Circuit Court of Cook County, the Hon. Thomas P.
Panichi, Judge, presiding.
Judgment Appellate court judgment affirmed.
Counsel on Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy
Appeal Defender, and Maya Szilak and Carolyn R. Klarquist, Assistant Appellate
Defenders, of the Office of the State Appellate Defender, of Chicago, for
appellant.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
State’s Attorney, of Chicago (Alan J. Spellberg, Ashley A. Romito,
Annette Collins, Yvette Loizon and Amy Watroba Kern, Assistant State’s
Attorneys, of counsel), for the People.
Justices JUSTICE GARMAN delivered the judgment of the court, with opinion.
Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the
judgment and opinion.
Chief Justice Kilbride dissented, with opinion.
OPINION
¶1 Defendant Curtis Leach was convicted after a bench trial in the circuit court of Cook
County of the first degree murder (720 ILCS 5/9-1(a)(2) (West 2002)) of his wife, Latyonia
Cook-Leach, and sentenced to 28 years’ imprisonment. His conviction and sentence were
affirmed on appeal. People v. Leach, 391 Ill. App. 3d 161 (2009). Upon defendant’s initial
appeal to this court, we vacated the appellate court’s judgment and remanded the cause to
that court for consideration in light of People v. Williams, 238 Ill. 2d 135 (2010). People v.
Leach, 237 Ill. 2d 575 (2010) (supervisory order). After reconsideration, the appellate court
again affirmed defendant’s conviction. 405 Ill. App. 3d 297. We then allowed defendant’s
petition for leave to appeal under Supreme Court Rule 315 (Ill. S. Ct. R. 315 (eff. Feb. 26,
2010)). We are asked to determine whether admission of the opinion testimony of a
pathologist other than the pathologist who performed the autopsy on the victim and of the
autopsy report itself violated the rule of Crawford v. Washington, 541 U.S. 36 (2004).
¶2 BACKGROUND
¶3 On June 30, 2004, defendant walked into the Harvey, Illinois, police station and reported
that he had killed his wife. He later gave a full statement, which was video-recorded, in
which he admitted strangling her, but stated that her death had been “an accident.” He was
charged with intentional murder (720 ILCS 5/9-1(a)(1) (West 2002)) and knowing murder
(720 ILCS 5/9-1(a)(2) (West 2002)).
¶4 On March 26, 2007, defendant filed a motion in limine, seeking several rulings, including
a ruling that would bar the State “from introducing testimony from any Medical Examiner
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other than Dr. Eupil Choi, the only doctor who performed the autopsy.” The motion in limine
did not seek to bar the admission of the autopsy report itself. In the motion papers, defendant
argued:
“To allow any doctor other than the doctor who performed the actual autopsy to
testify would be allowing the State to introduce hearsay evidence. This would be a
violation of the defendant’s right of confronting his accuser during cross-
examination. According to the evidence provided by the State, the only doctor who
has examined and performed the autopsy was Dr. Choi. Therefore his conclusion that
the cause of death was homicide is his opinion based on his personal examination.
To allow another doctor who has never examined the body, performed their own tests
or written any reports regarding the victim and the cause of death would be purely
hearsay. No other doctor has any personal knowledge as to how the victim died.”
¶5 At the hearing on the motion in limine, defense counsel did not make additional
argument. The State argued that:
“Dr. Arangelovich is an expert in forensic pathology. She has been qualified as an
expert here in Cook County in the area of forensic pathology other [sic] 15 times. She
is board certified. She has conducted hundreds of autopsies.
Your honor, she is coming in to offer her expert opinion as to the autopsy that Dr.
Eupil Choi conducted on the victim, Latyonia Cook, back in June of 2004.
Dr. Choi has retired and left the office. Dr. Arangelovich is not coming in with
a Crawford issue because she’s not testifying that she, in fact, conducted the autopsy
of the victim, Latyonia Cook, in this matter.
However, as an expert she is going to testify that she reviewed the information
that Dr. Choi provided with the autopsy report, the protocol, the photographs, and in
her expert opinion that she has opinions as to the manner of death and cause of death
of Latyonia Cook.”
¶6 The trial court denied the defendant’s motion without comment.
¶7 At trial, the court heard testimony from a number of witnesses, including police officers
and the victim’s mother. For purposes of considering the issues raised in this appeal, the
crucial evidence is defendant’s videotaped statement and the testimony of Dr. Arangelovich.
¶8 Defendant’s videotaped statement to the police and a transcript of the statement were
entered into evidence without objection by the defense, and the tape was played in open
court.
¶9 In his statement, he described coming home at 2:35 a.m., after working a 10-hour shift
at a recycling facility. His wife and children were sleeping upstairs. He took off his shoes and
fixed himself something to eat. After smoking a cigarette, he went upstairs to use the
washroom. Then he went back downstairs to smoke another cigarette.
¶ 10 Eventually, he went back upstairs. He checked on the children and entered the bedroom
he shared with his wife. She woke up and “looked around and saw it was” him and “she
immediately got up” and put on a nightgown. He turned on the lights, but she “stood up and
started talking” to him. He lay on the bed, still wearing his work clothes and smoking his
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cigarette, and listened to her tell him that she “did not appreciate” the way he treated her; he
did not “give her enough space to do what she want[ed] to do.” He described her complaints
as being similar to previous arguments, in which she complained about his “attitudes” and
his “not talking to her.”
¶ 11 Defendant explained that he just wanted to smoke his cigarette and go to sleep, but that
his wife’s complaints went on for “a good hour and a half,” with him listening and dozing
as he lay on his side of the bed. During this time, she was sitting on the side of the bed
“Indian style,” with her legs folded beneath her. According to defendant, his wife was raising
her voice and he was concerned that she would wake the children. They had come into their
parents’ bedroom in the past when they had heard an argument, but on this night, they did
not awaken.
¶ 12 He insisted to her that he was paying attention as she complained that she was “tired of
being broke and she’s tired of going week to week and not having our bills paid on time.”
He did not respond to her complaints because he could not get a point across unless he
“scream[ed] and holler[ed],” so he just listened as she went “on and on.” She was unhappy
living “in the projects,” and she wanted to know how she was going to get out of the projects
“if I can’t save no money.”
¶ 13 At about 5 a.m., his wife told him that she was not going to go back to sleep and that he
“might as well get up” with her and listen to what she was saying. He again told her that he
was listening. Then she lit a cigarette, reached over, and burned him on the hand with the lit
end. He brushed it off. She laughed, saying “I’m going to talk to you all night whether you
like it or not” and telling him he was “not gonna get no sleep.”
¶ 14 Although he kept telling her he loved her and that he would change, she did not believe
him. He asked if they could just stop the argument so he could get some sleep. He told her
that they could talk some more the next day, begging, “Just let me get a little sleep.” The
argument escalated. He had to “scream when he was talking”; various accusations were
exchanged; he continued to suggest that they get some sleep.
¶ 15 They were still on the bed when he put his hands on her. “[S]he didn’t want me to touch
her so she pushed my hand up off of her and then she started pushing me *** then we got
into an altercation where we was wrestling” and “she got to swinging on me.” He “pushed
her back just to let her know to calm down.” She began hitting his face with her open hand
because he was falling asleep and then “she started hitting me in my face with her fists” and
he “tried to contain her by grabbin her hands.” “She got up on her knees” and “was really
trying to get on top of me so she can really try to hit me all in my face.”
¶ 16 Defendant explained that he “just wanted to make her stop,” so he grabbed both of her
hands. She broke away and hit him again. Then he was up on his knees and he pushed her
down on the bed on her back. He had her right arm pinned, but she was swinging at him with
her left. At this point in the narrative, he demonstrated their positions with one of the
detectives. He described how he held one of her arms but “she steady hitting me with that
one.”
¶ 17 Defendant said that “it was over in a matter of seconds,” and then “a good three minutes
after the fact that, you know what I’m saying, I was choking her. And then she just stopped
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moving.” “It just like another person was in me.” “So after I’d say two minutes of just—no,
around a good minute and good 15 seconds of straight force up around her neck, she was
moving and stuff and then she just stopped moving.” He checked her pulse and found none,
so he put a pillow under her head and attempted CPR.
¶ 18 When he saw that it was time for the children to get up for summer school, he covered
his wife’s body. He was crying but did not want his children to see him in tears. He woke
them and told them their mother was asleep and he would take them to school. When they
were ready, he took them to his wife’s mother’s house where they regularly stayed before and
after school. He went inside the house, but did not speak to anyone except to tell his mother-
in-law that the children needed to brush their teeth because they had been out of toothpaste
at home.
¶ 19 Defendant said that he went home. He did not go into the bedroom, but when he looked
in and saw that his wife was “still in the same position,” he “knew she was gone.” He got in
his car and began to drive around, crying. He called his sister Tiffany, and she asked if he had
“killed that girl.” He denied it. He told his sister that he and his wife were fighting and she
told him to “take all my stuff out to my mom’s house.”
¶ 20 Eventually, he arrived at his mother’s house. His sister Tiffany was there. He did not
know what to do. He was too nervous to stand still. His mother was sleeping, but woke when
he kissed her. He broke down in tears, telling his mother and sister that he had killed his
wife. Then, because he did not want his mother to have “another heart attack,” he changed
his story to say he and his wife were just fighting.
¶ 21 He left in his car. He wanted to die. When he found a lake, he parked his car and got out
because he was contemplating jumping in. He called his older sister Sharon and told her he
had killed his wife. She kept him on the phone until eventually “something uplifted me not
to do it.” He realized that he could repent for killing his wife, but if he killed himself he
would go “straight to hell.”
¶ 22 Defendant got back in his car and began driving. His phone rang. It was his brother-in-
law, who told him to turn himself in. They agreed to meet at a gas station, where he bought
cigarettes and a pop. Then he followed his brother-in-law to the Harvey police station, where
they were met by a friend of his brother-in-law, who walked him into the station where he
told the police what had happened and was read his rights.
¶ 23 He explained that he was transported to the Robbins police department, because the
crime had happened in Robbins. As he was in his cell that night, it “registered” that his wife
was gone. He took his pants off, tied them in a knot, and tied it has high as he could on the
cell bars. He said that he did not remember what happened next because he “fainted out,” but
when he woke he realized that God did not want him to die. He expressed sorrow for what
he had done: “In the heat of the moment you do things that you don’t want to do. *** I know
it was wrong but it was an accident.”
¶ 24 Dr. Valarie Arangelovich testified that she was a deputy medical examiner in the Cook
County medical examiner’s office. After defendant renewed his objection to her testimony
and his objection was overruled, the parties stipulated to her status as an expert.
¶ 25 She explained that the autopsy of Latyonia Cook-Leach was conducted by Dr. Eupil
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Choi, who had since retired. She stated that she had reviewed “the autopsy protocol, the
toxicology reports, our investigator’s report, and photographs” that documented Dr. Choi’s
external and internal examinations of the body.
¶ 26 She stated that the toxicology report was negative for cocaine or heroin. The victim’s
blood-alcohol concentration was 0.015, which she noted was well below 0.08, the legal limit
for driving.
¶ 27 Asked by the State if she had formed an opinion, based on the review of these materials,
as to the cause of death, she answered that she had formed an opinion and that the cause of
death was strangulation and the manner of death was homicide. The basis for her conclusion
included “marks on the neck,” “bloody tinged fluid” in the trachea, and “hemorrhages in both
eyes,” which “means that there was some pressure placed on her neck which stopped her
blood flow from going in and out of the brain.”
¶ 28 Dr. Arangelovich testified based on her expertise as a forensic pathologist that an
individual “can lose consciousness anywhere from 10 to 30 seconds once that pressure is
applied; and then when the brain stops, everything else eventually stops, specifically the heart
and the lungs.” In “three to six minutes” “irreversible brain death” would occur. Further, the
amount of pressure required to stop the flow of blood from the brain is “about 4.4 pounds.”
“[T]o stop nutrient rich blood from going *** to the brain *** about 11 pounds” of pressure
is needed.
¶ 29 Asked whether the findings of the internal and external examination are “documented in
the photographs,” she answered, “Yes, they are.” She then reviewed the autopsy photos and
described the images to the court, including the hemorrhages in both eyes, a “rectangular
bluish mark” on the right side of the victim’s neck, which was referred to in the autopsy
report, also another photo showing “multiple abrasions *** adjacent to that mark on the
neck.” These abrasions were not mentioned by Dr. Choi in the report, but were observed by
Dr. Arangelovich from the photographs. She said that these abrasions were consistent with
fingernail marks.
¶ 30 She also pointed to a photograph of “purple/red discoloration” in the front of the victim’s
neck, under her chin, and a photograph of the victim’s face with “an abundant amount of
white foamy fluid exuding from the nostrils.” She explained that “because everything is
being constricted here at the neck, the fluid in the trachea can’t get down into the lungs, so
it builds up, and eventually it’s going to be out the path of least resistance, which would be
up through the nostrils.”
¶ 31 Another photograph showed the inside of the trachea, with “the red tinged fluid in the
congested lining of the trachea” demonstrating “quite a bit of congestion in this area, which
makes sense if there was pressure placed upon the neck, the blood isn’t going to be able to
be drained from the trachea. So again it’s going to build up and eventually come out through
her nose.”
¶ 32 In conclusion, Dr. Arangelovich reiterated that she did not conduct the autopsy, but that
she agreed with Dr. Choi’s finding of strangulation.
¶ 33 On cross-examination, the doctor agreed that the autopsy report showed that the victim
was 5 feet, 9½ inches tall and that she weighed 295 pounds. She acknowledged that she had
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spoken to the State’s Attorney before testifying and that she had read the police report. She
had not spoken to defendant or viewed his videotaped statement. When defense counsel
asked “so you don’t know whether the basis that [the defendant] says is the cause of death
is correct,” she responded that she did not know “what [the defendant] is saying.”
¶ 34 On redirect examination, Dr. Arangelovich stated that a person would lose consciousness
after 10 to 30 seconds of strangulation, but could recover “depending on what their physical
state of their heart and other organs are.” Asked whether there were any problems with the
victim’s heart, she answered “No.” Asked whether it would still require three to six minutes
for a person with an impaired heart to die from strangulation, she answered “Correct.”
¶ 35 On re-cross-examination, she again acknowledged that she had not personally examined
the victim’s heart and that the victim was obese, which would have been a “risk factor for
developing heart disease,” but that she was “only 29 years old.”
¶ 36 On further redirect examination, she was asked if there was anything in the documented
findings that would indicate that the victim could have died “after that 10 to 30 seconds.”
She answered that there was “nothing to indicate that.”
¶ 37 After the State rested its case in chief, it sought to admit 46 exhibits numbered 1 through
47 (the number 30 was inadvertently not used). Defendant objected only to the admission of
exhibit number 19, a bandage that was found near the victim’s body. The court admitted all
of the State’s exhibits, including exhibit number 39, the four-page “Report of Postmortem
Examination” and the attached “Results of Toxicologic Analyses,” “Medical Examiner Case
Report,” and diagram of the body.
¶ 38 Defendant then moved for a directed verdict, arguing that the State’s evidence failed to
prove intent. The State responded that the four-hour delay between the killing and
defendant’s turning himself in gave him time to fabricate an explanation for his actions.
Further, the expert testimony showed it would have taken three to six minutes of pressure
from strangulation to result in the victim’s death. Thus, the State argued, intent could be
inferred from defendant’s “keeping his hands around her throat” for that period of time.
¶ 39 The trial court denied the motion. Defendant chose not to testify.
¶ 40 In closing, the State asked the court to infer defendant’s intent from his actions. During
the altercation, he did not merely restrain his wife’s arms to prevent her from hitting him. He
put his hands around her throat and strangled her. Although he claims that her death was an
accident, he did not call 9-1-1. Instead, he took his children to his mother-in-law’s house as
if it were a normal day. He did not notify the police of his wife’s death until he was
convinced by a family member to turn himself in. Turning to the expert testimony, the State
argued that the victim would have been unconscious after 10 to 30 seconds of strangulation
and would not have been able to fight back. Thereafter, in the at least three minutes it would
have taken to cause her death, defendant would have known that his continuing to strangle
her would create a grave risk of death or bodily harm.
¶ 41 Defense counsel argued that the crime scene was entirely consistent with defendant’s
version of events. The small amount of blood on the victim’s mouth could have been the
result of his trying to administer CPR. Counsel stated that he was “not contesting that the
reason Latyonia Cook is dead is because Curtis choked her.” Rather, he argued, even though
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defendant’s actions were likely to cause death or great bodily harm, he did not intend to kill
her and he did not know that his actions could have caused such harm. At most, he acted
recklessly after she incited a fight and would not let it drop. He was defending himself and,
at most, was guilty of involuntary manslaughter.
¶ 42 In rebuttal, the State asked the court to reject any claim of self-defense, which would
require that the defendant admit his intent to kill to defend himself. Because defendant never
claimed that he was in fear for his life or that his wife tried to kill him, self-defense is not
available to justify his actions.
¶ 43 The State also rebutted defendant’s claim of mutual combat, arguing that mutual combat
necessarily ends when one party withdraws. Even if the couple were engaged in mutual
combat, she “withdrew” when she lost consciousness 10 to 30 seconds after he began to
strangle her. His continuing to strangle her beyond that point was unjustified and
unnecessary.
¶ 44 Finally, the State argued that there was no evidence of recklessness—that there is nothing
reckless about placing one’s hands around another’s throat and choking that person until he
or she is dead. Manual strangulation is “no accident.” One might accidentally shoot or stab
someone, because it takes only a second to do fatal harm, but one cannot accidentally
strangle another person for three to six minutes, after that person is unconscious, without
choosing to continue. “[H]e wanted her dead, and he wanted her dead for every second he
kept his hands clamped around her throat.”
¶ 45 The trial court found that the State did not meet its burden as to count I, intentional
murder (720 ILCS 5/9-1(a)(1) (West 2002)), but found defendant guilty beyond a reasonable
doubt of count II, knowing murder (720 ILCS 5/9-1(a)(2) (West 2002)), stating:
“[T]he evidence is clear that the length of time that it had to be for the choking, that
you knew that such strangling with your hand[s] created a strong probability of death
or great bodily harm.
I don’t know if it is 15 seconds or three minutes or six minutes.
I re-listened to your statement and an accident happens with a gun, an accident
happens with a knife, an accident happens with a car, an accident happens with a lot
of things like that.
I don’t see how an accident can happen with your hands. I don’t see how that can
happen.
I think that you got extremely aggravated. I do know you’re sorry about it after
the fact. I think you got extremely aggravated, she may have made you aggravated.”
¶ 46 Defendant filed a posttrial motion, in which he argued, inter alia, that the trial court erred
by denying his motion to bar the testimony of Dr. Arangelovich. The posttrial motion did not
raise any issue in connection with the admission of the autopsy report itself. At a subsequent
hearing, the trial court denied defendant’s motion to reconsider and his motion for a new
trial. The trial court sentenced him to 28 years’ imprisonment.
¶ 47 In affirming defendant’s conviction, the appellate court began its analysis by stating that
“[p]rior to trial, the defense moved in limine to bar the State from calling any forensic
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pathologist, apart from Dr. Choi, to testify concerning Latyonia’s postmortem examination
as recorded in the autopsy protocol. The trial court denied the motion and overruled defense
counsel’s renewed objections to the evidence at trial as well as in defendant’s posttrial
motion. Hence, the claim of error was properly preserved for our consideration.” 405 Ill.
App. 3d at 304. The appellate court did not note, however, that defendant’s motion in limine
did not object to admission of the autopsy report, but only to the testimony of Dr.
Arangelovich, or that he did not object to the admission of State’s exhibit number 39, the
autopsy report itself, or that he did not raise the issue of admission of the autopsy report in
his posttrial motion.
¶ 48 Having found the issue properly preserved, the appellate court affirmed defendant’s
conviction. After citing Crawford, 541 U.S. at 68, for the proposition that business records
are “[i]ncluded within that class of hearsay exemptions *** which the Court acknowledged
as historically nontestimonial,” the court concluded that, under Crawford, business records
are excluded “from the scrutiny of the confrontation clause.” 405 Ill. App. 3d at 305. Further,
“[a]n unbroken line of precedent instructs that business records have been uniformly
regarded as an exception to the hearsay rule.” Id. For these reasons, the court concluded that
admission of the autopsy report “did not implicate Crawford” because it was not testimonial
in nature. Id. at 308. In addition, the appellate court concluded that the rule of Crawford was
not implicated “where statements otherwise inadmissible as hearsay are used by experts for
the purpose of explaining the bases for their opinions.” Id. at 309. Finally, the court found
the evidence in the record sufficient to support the trial court’s verdict. Id. at 318.
¶ 49 ANALYSIS
¶ 50 Defendant raises three issues on appeal. First, he argues that the admission of Dr.
Arangelovich’s testimony recounting Dr. Choi’s autopsy findings violated the confrontation
clause because these findings were admitted for their truth, not simply for the purpose of
explaining the basis for her opinion. Second, he argues that admission of the autopsy report
itself into evidence violated his rights under the confrontation clause because he did not have
the opportunity to cross-examine Dr. Choi. Third, he argues that even if this evidence was
properly admitted, the evidence at trial was insufficient to convict him of knowing murder.
¶ 51 A. Admission of Testimony of Dr. Arangelovich
¶ 52 Defendant has abandoned the argument that Dr. Arangelovich should not have been
allowed to testify at all. Instead, defendant now challenges only that portion of Dr.
Arangelovich’s testimony that recounted the contents of the autopsy report. He distinguishes
her testimony from that in cases in which an expert has been allowed to recount the results
of laboratory tests performed by machines because autopsy findings are “purely a product of
human agency, perception, observation, and subjective interpretation, not raw data generated
by a neutral, objective machine.” In support of this argument, he cites United States v.
Washington, 498 F.3d 225 (4th Cir. 2007), and other cases for the proposition that expert
testimony recounting results of toxicology testing does not violate the right of confrontation
because such test results are generated by a neutral, objective machine, rather than a human
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agent. Washington does not assist our analysis. The court’s finding that raw data generated
by a machine do not constitute statements and that machines are not declarants (id. at 231)
does not offer any insight on the question of whether an expert witness who recounts the
results of an autopsy report is introducing testimonial hearsay.
¶ 53 Defendant also argues that Dr. Arangelovich “parroted” Dr. Choi’s autopsy findings on
direct examination by essentially reading his autopsy report verbatim into the record, in the
guise of expert opinion. This error, he asserts, was amplified by her testimony that she
“agreed” with Dr. Choi’s conclusions, which were offered for their truth. He quotes a
passage from United States v. Pablo, 625 F.3d 1285, 1292 (10th Cir. 2010): “If an expert
simply parrots another individual’s testimonial hearsay, rather than conveying her
independent judgment that only incidentally discloses testimonial hearsay ***, then the
expert is, in effect, disclosing the testimonial hearsay for its substantive truth and she
becomes little more than a backdoor conduit for otherwise inadmissible testimonial hearsay.”
However, since defendant’s brief was filed, the United States Supreme Court has vacated the
judgment in that case and remanded it for reconsideration in light of Williams v. Illinois, 567
U.S. ___,132 S. Ct. 2221
(2012) (plurality op.). We, therefore, find it unnecessary to
consider this case or the others cited by defendant for this argument.
¶ 54 In response, the State argues that Dr. Arangelovich’s testimony, even when she referred
to the contents of the autopsy report, was not hearsay. She “made clear that she was testifying
to her own opinions,” which were based on information gleaned from review of autopsy
photographs as well as the autopsy report. Although she agreed with Dr. Choi’s conclusions
as to the cause and manner of death, she reached her own conclusions, and she was subject
to cross-examination.
¶ 55 In Williams, the Court was asked to determine the constitutionality of allowing an expert
witness to testify regarding the results of a DNA test that she did not perform as the basis for
her opinion that the defendant’s DNA matched the test results. A plurality of the Court
concluded that an expert may recount out-of-court statements for the limited purpose of
explaining the assumptions upon which her opinion is based without implicating the
confrontation clause. Williams, 567 U.S. at ___,132 S. Ct. at 2228
.
¶ 56 However, in Williams, the “report itself was neither admitted into evidence nor shown
to the factfinder.” The expert witness “did not quote or read from the report; nor did she
identify it as the source of any of the opinions she expressed.” Id.at ___,132 S. Ct. at 2230
.
¶ 57 In the present case, not only did the testimony of an expert witness include the contents
of the autopsy report, the report itself was admitted into evidence. Thus, if admission of the
report was error because the report was testimonial in nature, the expert’s testimony may
have compounded that error. However, if the report was properly admitted, the expert
witness’s testimony cannot have violated the confrontation clause even if it had the effect of
offering the report for the truth of the matters asserted therein.
¶ 58 B. Admission of Autopsy Report
¶ 59 In his petition for leave to appeal, defendant argued that leave should be granted “to
resolve whether a medical examiner’s autopsy report, prepared for use in a criminal
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prosecution, is ‘testimonial’ evidence subject to the demands of the Confrontation Clause.”
However, our review of the record reveals that defendant’s motion in limine did not seek to
exclude admission of the autopsy report. Further, he neither objected to its admission when
the State moved for admission of its exhibit number 39, nor did he raise the issue of
admissibility of the autopsy report in his posttrial motion.
¶ 60 A defendant is not entitled to review of a claimed error unless he has made a timely
objection at trial and raised the issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176,
186 (1988). Under the plain-error rule, codified in Supreme Court Rule 615, “[a]ny error,
defect, irregularity, or variance which does not affect substantial rights shall be disregarded”
unless the appellant demonstrates plain error. Ill. S. Ct. R. 615. A reviewing court will find
plain error and grant relief only when “(1) a clear or obvious error occurred and the evidence
is so closely balanced that the error alone threatened to tip the scales of justice against the
defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred
and that error is so serious that it affected the fairness of the defendant’s trial and challenged
the integrity of the judicial process, regardless of the closeness of the evidence.” People v.
Piatkowski, 225 Ill. 2d 551, 565 (2007).
¶ 61 If a defendant fails to make a plain-error argument, we generally honor his procedural
default (People v. Ramsey, 239 Ill. 2d 342, 412 (2010)), because a defendant who fails to
argue for plain-error review when he has forfeited review of an issue “obviously cannot meet
his burden of persuasion” that one of the two prongs of the plain-error rule is satisfied
(People v. Hillier, 237 Ill. 2d 539, 545-46 (2010)). However, a party’s failure to preserve a
specific issue is not a jurisdictional bar to our review of the question. In re Rolandis G., 232
Ill. 2d 13, 37 (2008). For example, we may exercise our discretion to review an otherwise
forfeited issue when it is inextricably intertwined with other issues properly before the court.
Id.
¶ 62 In the present case, we choose to address the question presented by defendant for several
reasons. First, the State has not argued forfeiture. Second, the resolution of the issue that
defendant properly preserved is dependent on the resolution of the issue he forfeited. And
third, the issue implicates a fundamental constitutional right (People v. Campbell, 208 Ill.
2d 203, 211 (2003)) and is in need of resolution by this court.
¶ 63 Resolution of a claim under Crawford requires a court to answer a series of questions:
(1) Was the out-of-court statement hearsay because it was offered for the truth of the matters
asserted therein? (2) If hearsay, was the statement admissible under an exception to the
hearsay rule? (3) If admissible hearsay, was the statement testimonial in nature? and (4) If
testimonial, was admission of the statement reversible error?
¶ 64 Our review is de novo because a defendant’s claim that his sixth amendment right to
confront a witness against him was violated presents a question of law. People v. Lovejoy,
235 Ill. 2d 97, 141-42 (2009).
¶ 65 Autopsy Report As Hearsay Evidence
¶ 66 An out-of-court statement is hearsay and thus subject to the limits of the hearsay rule if
it is “a statement, other than one made by the declarant while testifying at the trial or hearing,
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offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(c) (eff. Jan.
1, 2011).1 The term “statement” includes written as well as oral assertions. Ill. R. Evid.
801(a) (eff. Jan. 1, 2011).
¶ 67 In the present case, because the report was admitted into evidence without limitation, we
find that it was admitted for the truth of the matters asserted therein.
¶ 68 Admission of Autopsy Report Under Exceptions to the Hearsay Rule
¶ 69 Even though the autopsy report was admitted for a hearsay purpose, its admission may
have been proper under either of two well-established exceptions to the hearsay rule,
provided a proper foundation was laid.
¶ 70 Rule 803(6) applies to records of regularly conducted activities if kept in the normal
course of business, “but not including in criminal cases medical records.” Ill. R. Evid. 803(6)
(eff. Jan. 1, 2011). Rule 803(8) codifies the long-standing hearsay exception for records “of
public offices or agencies, setting forth *** matters observed pursuant to duty imposed by
law as to which matters there was a duty to report, excluding, however, police accident
reports and in criminal cases medical records and matters observed by police officers and
other law enforcement personnel.” Ill. R. Evid. 803(8) (eff. Jan. 1, 2011). Both rules apply
unless the sources of information or the method or circumstances of preparation of the record
indicate a lack of trustworthiness. Ill. R. Evid. 803(6), 803(8) (eff. Jan. 1, 2011).
¶ 71 Defendant has not argued that an autopsy report is a “medical record,” and our research
reveals no cases in which it has been deemed such. The deceased person brought to the
medical examiner’s office for determination of cause of death is not a patient and the medical
examiner, although she is trained as a physician, is not the deceased person’s doctor.
¶ 72 Even aside from these common law exceptions to the hearsay rule, now codified in our
Rules of Evidence, reports of autopsies “kept in the ordinary course of business of the
coroner’s office” and “duly certified” are admissible “[i]n any civil or criminal action”
pursuant to state statute. 725 ILCS 5/115-5.1 (West 2002). Such records “shall be public
documents” and, thus, an autopsy report “may be duly admitted into evidence as an exception
to the hearsay rule as prima facie proof of the cause of death of the person to whom it
relates.” Id. The statute provides that either party may subpoena the person who prepared the
autopsy report, and if that individual is deceased, “a duly authorized official of the coroner’s
office may testify” to that fact and to the fact that “the offered report or record was prepared
by such deceased person.” Id. The testifying witness must also attest that the report “was
prepared in the ordinary and usual course of the deceased person’s duty or employment.” Id.
¶ 73 The statute does not address the situation where the individual who prepared the report
has retired or left the employment of the coroner’s office. However, the statute does state that
a duly certified report is admissible and that the individual who prepared it “may be”
subpoenaed, not that the report is inadmissible if he does not testify.
1
The Illinois Rules of Evidence, adopted by this court effective January 1, 2011, codify the
preexisting common law rules of evidence.
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¶ 74 The State argues that the report was admissible under either or both of these exceptions
to the hearsay rule. Defendant does not dispute this point, concentrating his argument on
whether the autopsy report was testimonial hearsay.
¶ 75 We find that the autopsy report was admissible under either or both of these exceptions
to the hearsay rule and under state statute.
¶ 76 Autopsy Report As Testimonial Hearsay
¶ 77 In Crawford, the Supreme Court held that “[w]here testimonial statements are at issue,
the only indicium of reliability sufficient to satisfy constitutional demands is the one the
Constitution actually prescribes: confrontation.” Crawford, 541 U.S. at 68-69. Specifically,
“the Sixth Amendment demands what the common law required: unavailability and a prior
opportunity for cross-examination.” Id. at 68. Because the hearsay statements at issue in that
case were “testimonial under any definition” (id. at 61), the Court left “for another day any
effort to spell out a comprehensive definition of ‘testimonial’ ” (id. at 68).
¶ 78 The Court did, however, give some guidance as to what types of statements might come
within the definition of “testimonial.” “Whatever else the term covers, it applies at a
minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial;
and to police interrogations.” Id. at 68. However, most of the hearsay exceptions that
developed at common law “covered statements that by their nature were not testimonial—for
example, business records or statements in furtherance of a conspiracy.” Id. at 56.
¶ 79 The appellate court characterized this comment as “Crawford’s exclusion of business
records from the scrutiny of the confrontation clause.” 405 Ill. App. 3d at 305. This is a
misreading of Crawford.
¶ 80 Crawford did not establish that business records are, in every case, nontestimonial.
Rather, the Court said that “there is scant evidence that exceptions [to the hearsay rule] were
invoked” in the early days of this country “to admit testimonial statements against the
accused in a criminal case.” (Emphases in original.) Crawford, 541 U.S. at 56. Rather,
“[m]ost of the hearsay exceptions covered statements that by their nature were not
testimonial—for example, business records or statements in furtherance of a conspiracy.”2
Id.
¶ 81 The Court was suggesting that the new rule it was adopting was not going to entirely
replace “the Framers’ design to afford the States flexibility in their development of hearsay
law” (id. at 68) by including every hearsay statement that might be admitted against a
criminal defendant within the scope of the new rule. As an example of the continuing vitality
of traditional hearsay exceptions, the Court merely noted in Crawford that business records
2
Under both federal and state rules of evidence, “a statement by a coconspirator of a party
during the course and in furtherance of the conspiracy” is “not hearsay.” Fed. R. Evid. 801(d)(2);
Ill. R. Evid. 801(d)(2) (eff. Jan. 1, 2011). Such a statement is not hearsay because it is not offered
for the truth of the matter asserted by the speaker, but rather to demonstrate the existence of and the
object of the conspiracy. A statement in furtherance of a conspiracy cannot be testimonial hearsay
because it is not hearsay.
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will rarely implicate the confrontation clause because they are prepared in the routine course
of the operation of the business activity or public office or agency, rather than for the purpose
of admission against a criminal defendant.3 This does not mean, however, that a business
record or public record can never be testimonial.
¶ 82 In subsequent cases, the Court has further clarified what makes an out-of-court statement
“testimonial” in nature. In Davis v. Washington, 547 U.S. 813, 822 (2006), the Court
distinguished between two types of statements that might be made to a police officer. One
category of statement is nontestimonial; the other is testimonial:
“Statements are nontestimonial when made in the course of police interrogation
under circumstances objectively indicating that the primary purpose of the
interrogation is to enable police assistance to meet an ongoing emergency. They are
testimonial when the circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to establish or prove
past events potentially relevant to later criminal prosecution.”
¶ 83 The Court recognized that the last clause in its holding—“that the purpose *** is to
establish or prove past events potentially relevant to later criminal prosecution”—could apply
to out-of-court statements that were not made during police interrogations. It limited its
holding in this way because the statements at issue in Davis were made during police
interrogations. However, in a footnote, the Court stated that it did not mean to “imply ***
that statements made in the absence of any interrogation are necessarily nontestimonial.” Id.
at 822 n.1.
¶ 84 Justice Thomas objected to the majority’s primary purpose test as unpredictable. Id. at
834 (Thomas, J., concurring in the judgment in part and dissenting in part). In his view, out-
of-court statements that lack “some degree of solemnity” are not testimonial in nature. Id.
at 836. He would find affidavits, depositions, prior testimony, and confessions sufficiently
solemn “to constitute formalized statements” subject to the rule of Crawford. Id. at 836-37.
¶ 85 At this point in the evolution of the Crawford line of cases, eight members of the Court
endorsed a primary purpose test to determine whether an out-of-court statement is
testimonial.
¶ 86 In the next case to reach the Court, the issue was whether a certificate from a state
laboratory attesting that the substance analyzed was cocaine was testimonial hearsay when
offered in evidence against a defendant charged with drug distribution and trafficking.
Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009).
¶ 87 In this case, the State offered several bases for excluding such certificates from the scope
of the Crawford rule, including: the individuals who conduct such analyses are not
“accusatory” witnesses; statements in the certificates are obtained by neutral, scientific
testing; and the certificates are akin to official and business records.
3
Other examples of such traditional hearsay exceptions are the exceptions for marriage,
baptismal, or similar certificates (Fed. R. Evid. 803(12); Ill. R. Evid. 803(12) (eff. Jan. 1, 2011)), for
which it is difficult to imagine a testimonial purpose for their creation.
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¶ 88 The Court rejected each of these arguments. First, a witness need not directly accuse the
defendant to be a witness “against” him within the meaning of the sixth amendment. Any
witness for the prosecution is a witness against a defendant. There is not a “category of
witnesses, helpful to the prosecution, but somehow immune from confrontation.” Id. at 314.
¶ 89 Second, with regard to excluding the results of forensic testing from the scope of the
Crawford rule, the Court noted that “[c]onfrontation is designed to weed out not only the
fraudulent analyst, but the incompetent one as well.” Id. at 319. Thus, forensic test results
are not to be treated differently from other types of out-of-court statements on the basis that
they are somehow more reliable. This argument “is little more than an invitation to return to”
the rule of Ohio v. Roberts, 448 U.S. 56 (1980), which Crawford overruled. Melendez-Diaz,
557 U.S. at 317.
¶ 90 Third, the Court held that the laboratory reports, while they may be similar in some
respects to business and official records admissible under a hearsay exception at common
law, are not admissible without confrontation. Id. at 321. The Court stated that such sworn
certificates do “not qualify as traditional official or business records, and even if they did,
their authors would be subject to confrontation nonetheless.” Id. The hearsay exception for
documents or records prepared in the regular course of business does not apply “if the
regularly conducted business activity is the production of evidence for use at trial.” Id. at
321-22 (citing Fed. R. Evid. 803(8) (defining pubic records as “excluding, however, in
criminal cases matters observed by police officers and other law enforcement personnel”)).
¶ 91 The Court then clarified its earlier statement in Crawford regarding business and official
records:
“Business and public records are generally admissible absent confrontation not
because they qualify under an exception to the hearsay rules, but because—having
been created for the administration of an entity’s affairs and not for the purpose of
establishing or proving some fact at trial—they are not testimonial.” Id. at 324.
¶ 92 In Melendez-Diaz, the forensic testing on the substance taken from the defendant at the
time of his arrest was performed for the specific purpose of determining whether the
substance was cocaine so that the results of the test could be used in a later criminal
prosecution. Thus, the Court concluded, although the analysts’ statements might “qualify as
business or official records,” they were prepared specifically for use in a criminal trial and
were, therefore, “testimony against” the defendant and subject to confrontation. Id. at 324.
¶ 93 The majority opinion found “little doubt” that the certificates fell within the “core class
of testimonial statements” described in Crawford. Id. at 310. The certificates were “quite
plainly affidavits” and were “functionally identical to live, in-court testimony, doing
‘precisely what a witness does on direct examination.’ ” Id.at 310-11 (quoting Davis,547 U.S. at 830
). The opinion emphasized that the purpose, indeed the “sole purpose of the
affidavits[,] was to provide ‘prima facie evidence of the composition, quality, and the net
weight’ of the analyzed substance.” (Emphasis in original.) Id.at 311 (quotingMass. Gen. Laws ch. 111, § 13
).
¶ 94 Justice Thomas again concurred, distancing himself from consideration of the purpose
of the out-of-court statement and repeating his position that the confrontation clause is
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implicated only by extrajudicial statements that are “ ‘contained in formalized testimonial
materials.’ ” Id. at 329 (Thomas, J., concurring) (quoting White v. Illinois, 502 U.S. 346, 365
(1992) (Thomas, J., concurring in part and concurring in the judgment, joined by Scalia, J.)).
¶ 95 Justice Kennedy wrote in dissent, joined by three other justices. (These four would go on
to form the plurality in Williams.) The dissenters concluded that laboratory technicians who
perform forensic tests are not “witnesses” against a defendant because their reports reflect
near contemporaneous observations of the test itself, not recollections of past events. Id. at
345 (Kennedy, J., dissenting, joined by Roberts, C.J., and Breyer and Alito, JJ.). The dissent
contrasted such contemporary observations with the statements at issue in Davis, where the
Court distinguished between two types of witness statements based on their primary purpose.
Id. In contrast, recording an observation at the time it is made is not an act of witnessing,
according to the dissent. Id. The dissent noted further that the technician who prepares a
forensic laboratory report “observes neither the crime nor any human action related to it”;
thus, he is “not a witness against the defendant in the conventional sense.” Id. Finally, the
dissent took exception to the Court’s use of the term “testimonial” as the basis for
determining whether an out-of-court statement is subject to the confrontation clause when
the clause itself refers to witnesses, not to statements. Id. at 346.
¶ 96 The dissent did not reject the primary purpose test that until this time had eight
subscribers on the Court, but did state that the Court had transformed a mere turn of phrase,
“testimonial statement,” “into a new and sweeping legal rule, by holding that anyone who
makes a formal statement for the purpose of later prosecution—no matter how removed from
the crime—must be considered a ‘witness against’ the defendant.” Id.
¶ 97 In Michigan v. Bryant, 562 U.S. ___,131 S. Ct. 1143
(2011), the out-of-court statements
at issue were made by the victim of a shooting to the police officers who responded to the
call. The victim identified the man who shot him and described the circumstances of the
shooting. He died within hours. Id.at ___,131 S. Ct. at 1150
. At the murder trial of the
individual identified by the victim, the victim’s statements to police were admitted into
evidence under the excited utterance exception to the hearsay rule. Id.at ___,131 S. Ct. at 1151
. The Supreme Court of Michigan concluded that the statements were obtained by police
questioning for the primary purpose of establishing the facts of an event that had already
occurred, not to enable the police to deal with an ongoing emergency. Id.at ___,131 S. Ct. at 1151
. Thus, the court concluded that the statements were testimonial in nature and their
admission violated the confrontation clause. The state supreme court reversed the conviction
and ordered a new trial. Id.at ___,131 S. Ct at 1151
.
¶ 98 Writing for five justices (Justice Kagan did not participate), Justice Sotomayor recounted
Crawford and its progeny, including the primary purpose test announced in Davis. Id. at ___,
131 S. Ct. at 1154. The majority reaffirmed the test, stating clarification was necessary
because the facts of this case presented a “new context” for its application. Id.at ___,131 S. Ct. at 1156
.
¶ 99 Determining whether the primary purpose of an interrogation of a witness by the police
is to enable the police to respond to an ongoing emergency requires an “objective[ ]
evaluat[ion of] the circumstances in which the encounter occurs and the statements and
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actions of the parties.” Id.at ___,131 S. Ct. at 1156
. “That is, the relevant inquiry is not the
subjective or actual purpose of the individuals involved in a particular encounter, but rather
the purpose that reasonable participants would have had, as ascertained from the individuals’
statements and actions and the circumstances in which the encounter occurred.” Id. at ___,
131 S. Ct. at 1156. “[W]hether an emergency exists and is ongoing is a highly context-
dependent inquiry.” Id.at ___,131 S. Ct. at 1158
.
¶ 100 When police respond to a call reporting a shooting, the “threat to the first responders and
public may continue.” Id.at ___,131 S. Ct. at 1158
. In addition, “the duration and scope of
an emergency may depend in part on the type of weapon employed.” Id.at ___,131 S. Ct. at 1158
. The existence of a medical emergency is also relevant.Id.
at ___,131 S. Ct. at 1158
.
The majority acknowledged that interrogation of a witness on the scene of an emergency may
evolve into the collection of a testimonial statement (id. at ___, 131 S. Ct. at 1159), and that
formality is not the “sole touchstone” of the primary purpose inquiry (id. at ___, 131 S. Ct.
at 1160). However, whether an ongoing emergency exists when the police obtain a statement
from a witness is “simply one factor—albeit an important factor—that informs the ultimate
inquiry regarding the ‘primary purpose’ of an interrogation.” Id.at ___,131 S. Ct. at 1160
.
“Objectively ascertaining the primary purpose of the interrogation by examining the
statements and actions of all participants is also the approach most consistent with our past
holdings.” Id.at ___,131 S. Ct. at 1162
.
¶ 101 Applying these principles to the facts, the majority concluded that “there was an ongoing
emergency here where an armed shooter, whose motive for and location after the shooting
were unknown,” and a mortally wounded victim was found near the site of the shooting and
within minutes thereafter. Id.at ___,131 S. Ct. at 1164
. The officers asked questions
necessary to allow them to assess the situation, including threats to their own safety and the
safety of the victim. Id.at ___,131 S. Ct. at 1166
. These initial inquiries “resulted in the type
of nontestimonial statements” contemplated in Davis. Id.at ___,131 S. Ct. at 1166
. Finally,
the situation was informal, lacking any circumstances that would have alerted the victim that
his statements might be used in a future prosecution. Id.at ___,131 S. Ct. at 1166
. Thus, the
circumstances objectively indicated that the primary purpose of the police questioning was
to enable the police to meet an ongoing emergency, and the victim’s statements to police
were not testimonial in nature. Id.at ___,131 S. Ct. at 1166-67
.
¶ 102 Justice Thomas concurred in the judgment, again on the basis that the statements at issue
“lacked sufficient formality and solemnity” to be considered testimonial. Id.at ___,131 S. Ct. at 1167
(Thomas, J., concurring in the judgment).
¶ 103 Justice Scalia dissented, joined by Justice Ginsburg. He did not entirely reject the primary
purpose test that he set out in Davis, which referred to the purpose “of the interrogation”
(Davis, 547 U.S. at 822); rather, he objected to the majority’s application of the test. In his
opinion, the primary purpose inquiry should actually focus on the declarant’s purpose in
making the statement, not on the purpose of the police in soliciting it. Bryant, 562 U.S. at
___,131 S. Ct. at 1169
(Scalia, J., dissenting). In this case, from the victim’s perspective,
“his statements had little value except to ensure the arrest and eventual prosecution” of the
defendant. Id.at ___,131 S. Ct. at 1170
.
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¶ 104 Justice Ginsburg agreed with this position, but wrote separately to opine that even if the
interrogators’ intent were considered, as instructed by Davis, the victim’s statements in this
case would be testimonial. Id.at ___,131 S. Ct. at 1176
(Ginsburg, J., dissenting).
¶ 105 A scorecard may be useful at this point. After Bryant, eight members of the Court
endorsed a primary purpose test when the out-of-court statement at issue was made by a
witness or a victim to the police (Davis); they disagreed as to whether the test should be
applied from the perspective of the declarant (the Bryant dissenters) or based on a
consideration of all circumstances, including the intent of the interrogators (the Bryant
majority). Four justices applied a purpose test when the out-of-court statement was a report
of forensic testing (Melendez-Diaz plurality), while four found it unnecessary to apply the
test because the declarants were not “witnesses” against the accused (Melendez-Diaz dissent).
Justice Thomas has consistently maintained his position that the test to determine whether
an out-of-court statement is testimonial is the degree of solemnity and formality with which
it was made.
¶ 106 Next, in Bullcoming v. New Mexico, 564 U.S. ___,131 S. Ct. 2705
(2011), the Court
considered whether a defendant in a prosecution for driving while under the influence of
intoxicating liquor had the right under the sixth amendment to confront the analyst who
certified the blood-alcohol analysis report. Id. at ___, 131 S. Ct. at 2710. The State had
admitted the test results through the testimony of a scientist other than the one who
performed the test.
¶ 107 Bullcoming was another divided opinion. Justice Ginsburg wrote for the majority, but
Justices Thomas and Kagan joined only in part; Justice Sotomayor joined in part and filed
a separate opinion concurring in part. Justice Kennedy filed a dissent, joined by Chief Justice
Roberts and Justices Breyer and Alito. (These four dissenters would go on to become the
plurality in Williams.)
¶ 108 The majority opinion described Melendez-Diaz as standing for the proposition that a
forensic laboratory report created “specifically to serve as evidence in a criminal proceeding”
is testimonial for purposes of the confrontation clause. Id. at ___, 131 S. Ct. at 2709. Thus,
a forensic laboratory report “containing a testimonial certification” of a defendant’s blood-
alcohol concentration, “made for the purpose of proving a particular fact” at trial, is
testimonial. Id. at ___, 131 S. Ct. at 2710. In a footnote, the majority quoted the language
from Davis regarding the “primary purpose” of an out-of-court statement. Id. at ___ n.6, 131
S. Ct. at 2714 n.6.
¶ 109 As applied to the facts of this case, the blood-alcohol test results were testimonial in
nature because the report was “created solely for an ‘evidentiary purpose’ *** in aid of a
police investigation.” Id. at ___, 131 S. Ct. at 2717 (quoting Melendez-Diaz, 557 U.S. at ___,
129 S. Ct. at 2532). The absence of formal certification or notarization did not remove this
report from the scope of the confrontation clause, because the formalities attending the
creation of the report and its purpose were “more than adequate” to classify it as testimonial.
Id. at ___, 131 S. Ct. at 2717.
¶ 110 Justice Sotomayor wrote separately “to highlight” her opinion that the “primary purpose
“ test should govern the question of whether a particular scientific report is testimonial. Id.
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at ___, 131 S. Ct. at 2719-20 (Sotomayor, J., concurring in part). The report at issue in this
case had no alternate purpose, let alone an alternate primary purpose, other than to serve as
evidence at trial. Id. at ___, 131 S. Ct. at 2722. Further, the formality of its certification
suggested its evidentiary purpose. Id. at ___, 131 S. Ct. at 2721. Thus, “[a]s in Melendez-
Diaz, the primary purpose of the BAC report [was] clearly to serve as evidence. It is therefore
testimonial ***.” Id. at ___, 131 S. Ct. at 2723.
¶ 111 Justices Thomas and Kagan joined the opinion in part. Neither joined part IV of the
opinion, which discussed whether complying with the holding of this case would unduly
burden prosecutions. In addition, Justice Thomas did not join footnote 6, which defined
“testimonial” using the primary purpose test set out in Davis.
¶ 112 The dissenting justices opined that it was a mistake to extend the holding of Melendez-
Diaz to cases in which “a knowledgeable representative of the laboratory was present to
testify and to explain the lab’s processes and the details of the report.” Id. at ___, 131 S. Ct.
at 2723 (Kennedy, J., dissenting, joined by Roberts, C.J., and Breyer and Alito, JJ.). The
dissent would have distinguished between a document that is quite plainly an affidavit, such
as the report at issue in Melendez-Diaz, and a routine test result generated by a scientific
laboratory. Id. at ___, 131 S. Ct. at 2724. The dissent does not mention the primary purpose
test, either to endorse or reject it.
¶ 113 Thus, after Bullcoming, the primary purpose test had been accepted in some form by
every member of the Court except Justice Thomas. The test had been applied to two
categories of out-of-court statements: statements made by witnesses to the police and
statements contained in reports of forensic testing.
¶ 114 Most recently, in Williams v. Illinois, 567 U.S. ___,132 S. Ct. 2221
(2012), the Supreme
Court considered whether Crawford bars an expert from expressing an opinion based on
facts gleaned from a laboratory report when she lacked firsthand knowledge regarding the
preparation of the report. The hearsay evidence at issue in Williams was a DNA profile
prepared by an outside laboratory using vaginal swabs collected from the victim of a crime.
¶ 115 Justice Alito wrote the plurality opinion, joined by Justices Roberts, Kennedy, and
Breyer. These four justices were the dissenters in Melendez-Diaz and Bullcoming, the two
previous cases involving forensic test results. Justice Breyer wrote separately to restate the
position of their earlier dissents. Justice Thomas concurred in the judgment, maintaining his
position that formality and solemnity are the hallmarks of a testimonial statement. Finally,
Justice Kagan’s dissent was joined by Justices Scalia, Ginsburg, and Sotomayor.
¶ 116 The plurality concluded that the expert’s testimony was not barred. Williams, 567 U.S.
at ___,132 S. Ct. at 2240
. Then the plurality went on to consider whether admission of the
actual DNA profile for its truth would have violated the confrontation clause. Id.at ___,132 S. Ct. at 2242
.
¶ 117 The plurality noted that in Crawford, Melendez-Diaz, and Bullcoming, the confrontation
clause was violated by the admission of evidence that shared two characteristics: “(a) they
involved out-of-court statements having the primary purpose of accusing a targeted
individual of engaging in criminal conduct and (b) they involved formalized statements such
as affidavits, depositions, prior testimony, or confessions.” Id.at ___,132 S. Ct. at 2242
. In
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all but one of the post-Crawford cases finding a confrontation violation both of these
characteristics were present. In Hammon v. Indiana, 547 U.S. 813, 829-32 (2006), the
companion case to Davis, an informal statement that was elicited in the course of the police
interrogation was found to be testimonial in nature. However, in every case, including
Hammon, the “statement at issue had the primary purpose of accusing a targeted individual.”
Id.at ___,132 S. Ct. at 2243
.
¶ 118 Thus, the plurality concluded in Williams that not all forensic reports offered by the State
are testimonial statements. Rather, the forensic reports at issue in Melendez-Diaz and
Bullcoming “ran afoul of the Confrontation Clause because they were the equivalent of
affidavits made for the purpose of proving the guilt of a particular criminal defendant at
trial.” Id.at ___,132 S. Ct. at 2243
. In contrast, the DNA report at issue in Williams “plainly
was not prepared for the primary purpose of accusing a targeted individual.” Id.at ___,132 S. Ct. at 2243
. Indeed, the defendant “was neither in custody nor under suspicion” when the
vaginal swabs from the victim were sent to the outside laboratory for testing. Id.at ___,132 S. Ct. at 2243
.
¶ 119 In Williams, unlike the present case, the disputed report was not itself admitted into
evidence. Nevertheless, the plurality concluded in “a second, independent basis for [its]
decision” (id. at ___, 132 S. Ct. at 2228) that “[e]ven if the *** report had been introduced
for its truth, we would nevertheless conclude that there was no Confrontation Clause
violation” (id. at ___, 132 S. Ct. at 2242). The challenged DNA report was not prepared for
the purpose of accusing the defendant, who was not in custody or even under suspicion at the
time the test was performed. Id.at ___,132 S. Ct. at 2243
. The technicians conducting the
test and preparing the report had “no incentive to produce anything other than a scientifically
sound and reliable profile.” Id.at ___,132 S. Ct. at 2244
. Further, they could not have
known whether the results they reported would be used to incriminate or exonerate an
individual. Id.at ___,132 S. Ct. at 2244
. In addition, because multiple individuals participate
in the process of DNA testing, “it is likely that the sole purpose of each technician is simply
to perform his or her task in accordance with accepted procedures.” Id.at ___,132 S. Ct. at 2244
. Finally, where DNA test results are concerned, the testimony showed that an expert
witness would be able to tell by looking at the test results if the sample had been degraded
or contaminated. Id. Indeed, the possibility that “shoddy lab work” would produce a profile
that was a “precise genetic” match to an individual later picked out of a lineup by the victim
is “beyond fanciful.” Id.at ___,132 S. Ct. at 2244
.
¶ 120 When we must determine whether a forensic report is testimonial in nature, the Williams
plurality instructs us to apply an objective test, looking for “the primary purpose that a
reasonable person would have ascribed to the statement, taking into account all of the
surrounding circumstances.” Id.at ___,132 S. Ct. at 2243
. If this inquiry reveals that the
forensic report was “made for the purpose of proving the guilt of a particular criminal
defendant at trial” (id. at ___, 132 S. Ct. at 2243), it is testimonial.
¶ 121 The Williams dissent rejects this focus on the targeting of a particular individual,
reminding us that Davis formulated the test as whether the out-of-court statement was “made
for the primary purpose of establishing ‘past events potentially relevant to later criminal
prosecution’—in other words, for the purpose of providing evidence.” Id. at ___, 132 S. Ct.
-20-
at 2273 (Kagan, J., dissenting, joined by Scalia, Ginsburg and Sotomayor, JJ.) (quoting
Davis, 547 U.S. at 822). The dissent accuses the plurality of adopting, without explanation,
a new formulation of the primary purpose test when forensic testing is involved, asking
whether the report was prepared “for the primary purpose of accusing a targeted individual.”
Id.at ___,132 S. Ct. at 2273
.
¶ 122 We conclude that whichever definition of primary purpose is applied, the autopsy report
in the present case was not testimonial because it was (1) not prepared for the primary
purpose of accusing a targeted individual or (2) for the primary purpose of providing
evidence in a criminal case.
¶ 123 Defendant argues that the objective circumstances of the present case show that the
autopsy report prepared by Dr. Choi was testimonial. The medical examiner case report,
which is a form attached to the autopsy report, states the body was found by Officer M.
Evans, who had responded to a call from the victim’s mother asking that the police check on
the well-being of her daughter. She was concerned because her son-in-law had called her and
told her that he had “done something to his wife.” Evans reported that he and another officer
contacted the manager at the housing complex and obtained entry to the apartment “where
they discovered the subject lying in bed unresponsive.” In addition, Detective T. Franklin
was interviewed and he “related that the subject’s husband is now in custody and admitted
choking his wife.”4
¶ 124 Defendant argues that because Dr. Choi was performing an autopsy “at the police’s
request in the midst of a criminal investigation into a violent death where a suspect had been
arrested for homicide, [he] had every reason to expect that his autopsy report on Latyonia
could be used as evidence in a later criminal trial.”
¶ 125 The State responds that the medical examiner’s office is not engaged in “the production
of evidence for use at trial” (Melendez-Diaz, 557 U.S. at 321) but, rather, in the
determination of the cause and manner of death when an individual dies under certain
specified circumstances. The medical examiner’s office is not a law enforcement agency and
it does not conduct autopsies and prepare autopsy reports with the primary purpose of their
being used as evidence in future criminal trials of targeted individuals. Even if Dr. Choi
knew or suspected that his report in this case would likely be used in a future criminal trial,
his function was not “the production of evidence for use at trial.”
¶ 126 We agree. Under state law, as soon as a coroner “knows or is informed that the dead body
of any person is found, or lying within his county, *** [he] shall *** take charge of the same
and shall make a preliminary investigation into the circumstances of the death” if any one
of five enumerated conditions exists. 55 ILCS 5/3-3013 (West 2010). One such condition is
that the death was “sudden or violent death, whether apparently suicidal, homicidal or
accidental.” 55 ILCS 5/3-3013(a) (West 2010). Further, even when the police suspect foul
4
Defendant also asserts that a “copy of the police report documenting the criminal
investigation into Latyonia’s death also was sent to the medical examiner with Latyonia’s body.”
However, the portion of the record that he cites for this assertion is State’s exhibit number 39, which
is the autopsy report and attached forms, none of which is a police report.
-21-
play and the medical examiner’s office is aware of this suspicion, an autopsy might reveal
that the deceased died of natural causes and, thus, exonerate a suspect. For example, an
autopsy of an apparent victim of a crime could reveal that the cause of death was a ruptured
congenital brain aneurysm and that the physical altercation was not a contributing cause.
¶ 127 In the present case, although the police discovered the body and arranged for transport,
there is no evidence that the autopsy was done at the specific request of the police. The
medical examiner’s office performed the autopsy pursuant to state law, just as it would have
if the police had arranged to transport the body of an accident victim.
¶ 128 The statute also requires that when the coroner or medical examiner determines that the
cause of death is homicide, he shall withdraw certain specimens from the body and shall
deliver these specimens to the Illinois State Police, Division of Forensic Services, “in
addition to any other findings, specimens, or information that [he] is required to provide
during the conduct of a criminal investigation.” 55 ILCS 5/3-3013 (West 2010).
¶ 129 Thus, Dr. Choi, as the assistant medical examiner assigned to this case, was required by
law to prepare a report and to submit that report, along with other items, to the police.
Although he was aware that the victim’s husband was in custody5 and that he had admitted
to “choking” her, his examination could have either incriminated or exonerated him,
depending on what the body revealed about the cause of death. See Williams, 567 U.S. at
___,132 S. Ct. at 2228
. In short, Dr. Choi was not acting as an agent of law enforcement, but
as one charged with protecting the public health by determining the cause of a sudden death
that might have been “suicidal, homicidal or accidental.” 55 ILCS 5/3-3013 (West 2010).
¶ 130 Further, while it is true that an autopsy report might eventually be used in litigation of
some sort, either civil or criminal, these reports are not usually prepared for the sole purpose
of litigation. A finding of accidental death may eventually lead to claims of product liability,
medical malpractice, or other tort. A finding of suicide may become evidence in a lawsuit
over proceeds of a life insurance policy. Similarly, a finding of homicide may be used in a
subsequent prosecution of the accused killer. But the primary purpose of preparing an
autopsy report is not to accuse “a targeted individual of engaging in criminal conduct”
(Williams, 567 U.S. at ___,132 S. Ct. at 2242
) or to provide evidence in a criminal trial
(Davis, 547 U.S. at 822). An autopsy report is prepared in the normal course of operation of
the medical examiner’s office, to determine the cause and manner of death, which, if
determined to be homicide, could result in charges being brought.
¶ 131 And, unlike the forensic report at issue in Melendez-Diaz, the autopsy report was not
certified or sworn in anticipation of its being used as evidence; it was merely signed by the
doctor who performed the autopsy. (Thus, the autopsy report would not be deemed
testimonial by Justice Thomas, because it lacks the formality and solemnity of an affidavit,
deposition, or prior sworn testimony.)
¶ 132 In the present case, the autopsy report did not bear testimony against the defendant.
Nothing in the report directly linked defendant to the crime. Unlike a DNA test which might
5
The record does not indicate that defendant was under arrest when the body of the victim
was brought to the medical examiner’s office, although he was in custody at that time.
-22-
identify a defendant as the perpetrator of a particular crime, the autopsy finding of homicide
did not directly accuse defendant. Only when the autopsy findings are viewed in light of
defendant’s own statement to the police is he linked to the crime. In short, the autopsy sought
to determine how the victim died, not who was responsible, and, thus, Dr. Choi was not
defendant’s accuser.
¶ 133 Finally, as a practical matter, because a prosecution for murder may be brought years or
even decades after the autopsy was performed and the report prepared, these reports should
be deemed testimonial only in the unusual case in which the police play a direct role (perhaps
by arranging for the exhumation of a body to reopen a “cold case”) and the purpose of the
autopsy is clearly to provide evidence for use in a prosecution. The potential for a lengthy
delay between the crime and its prosecution could severely impede the cause of justice if
routine autopsies were deemed testimonial merely because the cause of death is determined
to be homicide.
“This passage of time can easily lead to the unavailability of the examiner who
prepared the autopsy report. *** Certainly it would be against society’s interests to
permit the unavailability of the medical examiner who prepared the report to preclude
the prosecution of a homicide case.” People v. Durio, 794 N.Y.S.2d 863, 869 (N.Y.
Sup. Ct. 2005) (holding that autopsy reports are not testimonial in nature by virtue
of their status as records created in the routine course of business of the medical
examiner’s office).
See, e.g., People v. Caballero, 206 Ill. 2d 65 (2002) (describing case of murder of three
teenagers by four gang members: two were tried and convicted shortly after the 1979
murders, one was arrested in California in 1988 and pleaded guilty, and one was finally tried
and convicted in 1992).
¶ 134 We acknowledge that defendant has cited several cases from other jurisdictions in which
the courts of our sister states have held that an autopsy report is testimonial hearsay, either
in a case in which the report was admitted or in which a medical examiner other than the one
who performed the autopsy was permitted to testify to the contents of the report. See, e.g.,
State v. Davidson, 242 S.W.3d 409, 417 (Mo. Ct. App. 2007) (holding that when an autopsy
report is prepared at the request of law enforcement in anticipation of a murder prosecution
and the report is offered to prove the victim’s cause of death, the report is testimonial);
Martinez v. State, 311 S.W.3d 104, 111 (Tex. Ct. App. 2010) (holding that an autopsy report
is testimonial when its primary purpose is to establish or prove past events, as demonstrated
by police officer’s attendance at autopsy, his taking of photographs during autopsy, and
where statutory basis for performance of the autopsy was suspicion of death by unlawful
means); United States v. Moore, 651 F.3d 30, 73 (D.C. Cir. 2011) (per curiam) (classifying
autopsy reports as testimonial when requested by law enforcement, officers are present
during autopsies, and officers participated in preparation of diagrams and other portions of
the reports), cert. granted in part in Smith v. United States, ___ U.S. ___, 132 S. Ct. 2772
(2012).
¶ 135 However, these cases are countered by cases holding that an autopsy report may be
admitted into evidence without the testimony of the pathologist who performed the autopsy
-23-
without violating the defendant’s rights under the confrontation clause. See, e.g., State v.
Craig, 110 Ohio St. 3d 306,2006-Ohio-4751
,853 N.E.2d 621, at ¶¶ 80-88
(concluding that
autopsy reports are admissible nontestimonial business records), review granted by State v.
Craig, 126 Ohio St. 3d 1573,2010-Ohio-4539
,934 N.E.2d 347
(table); United States v.
Feliz, 467 F.3d 227, 236-37 (2d Cir. 2006) (holding that autopsy reports are admissible as
business records and are nontestimonial “even where the declarant is aware that [the report]
may be available for later use at trial”); Banmah v. State, 87 So. 3d 101, 103 (Fla. Dist. Ct.
App. 2012) (autopsy reports are nontestimonial because they are prepared pursuant to
statutory duty and not solely for use in prosecution); Cato v. Prelesnik, 2012 WL 2952183,
*3 (W.D. Mich. July 18, 2012) (rejecting Crawford claim in habeas petition on basis that
Crawford did not clearly establish that autopsy results are testimonial in nature and that even
under Melendez-Diaz, the answer to this question is uncertain). In addition, the cases cited
by defendant predate the Supreme Court’s decision in Williams.
¶ 136 This split of opinion and the confusion regarding application of the primary purpose test
to reports of forensic testing may eventually be resolved by the United States Supreme Court.
In the meantime, while we are not prepared to say that the report of an autopsy conducted by
the medical examiner’s office can never be testimonial in nature, we conclude that under the
objective test set out by the plurality in Williams, under the test adopted in Davis, and under
Justice Thomas’s “formality and solemnity” rule, autopsy reports prepared by a medical
examiner’s office in the normal course of its duties are nontestimonial. Further, an autopsy
report prepared in the normal course of business of a medical examiner’s office is not
rendered testimonial merely because the assistant medical examiner performing the autopsy
is aware that police suspect homicide and that a specific individual might be responsible.
¶ 137 Because the autopsy report prepared by Dr. Choi was neither “the equivalent of affidavits
made for the purpose of proving the guilt of a particular criminal defendant at trial”
(Williams, 567 U.S. ___,132 S. Ct. at 2243
), nor prepared for the primary purpose of
providing evidence in a criminal case (Davis, 547 U.S. at 822), we find that it was properly
admitted because it was nontestimonial in nature.
¶ 138 Even if our prediction of the Supreme Court’s resolution of this issue should prove
wrong, defendant is not entitled to a new trial.
¶ 139 Reversible Error
¶ 140 Admission of testimonial hearsay is error unless the declarant is unavailable and the
defendant has had a prior opportunity for cross-examination. Crawford, 541 U.S. at 68-69.
Upon showing of such an error, the defendant is entitled to a new trial unless the error was
harmless beyond a reasonable doubt. People v. Patterson, 217 Ill. 2d 407, 428 (2005).
¶ 141 Even if admission of the autopsy report was error, defendant did not properly preserve
this issue and he has not argued that admission of the autopsy report was plain error. We
consider his claim of error under the rubric of harmless error, aware that if an error was
harmless, it most certainly cannot rise to the level of plain error.
¶ 142 Defendant argues that the error cannot have been harmless where his “mental state at the
time of the offense was the key issue in dispute, and that he indicated that Latyonia’s death
-24-
was an accident.” He argues that Dr. Arangelovich had no personal knowledge of the
condition of the victim’s heart or other organs and, thus, was “entirely dependent on Dr.
Choi’s opinion in the matter.”
¶ 143 The State argues that the autopsy report was merely cumulative evidence because Dr.
Arangelovich made her own conclusions as to the cause and manner of the victim’s death,
based on her assessment of the postmortem photographs that were properly admitted at trial.
¶ 144 If we were to omit from the record the autopsy report itself and all testimony by Dr.
Arangelovich about the report and the photographs, and if we were to ignore her testimony
that she concurred with Dr. Choi’s conclusions as to the cause and manner of death, we
would be left with two types of evidence to consider as we determine whether any error was
harmless.
¶ 145 First, the defendant does not dispute the cause and manner of death. In his statement to
police, he admitted that the killing was a homicide (see Black’s Law Dictionary 802 (9th ed.
2009) (defining homicide as “[t]he killing of one person by another”)), and that he caused
his wife’s death by strangling her with his hands. During closing argument, defense counsel
reiterated that he was “not contesting that the reason Latyonia Cook is dead is because Curtis
choked her.” Thus, the only issue in dispute was whether this homicide was intentional or
knowing murder, or some less culpable form of homicide.
¶ 146 Second, Dr. Arangelovich testified as an expert in forensic pathology. The defendant
stipulated to her qualifications as an expert in this field. In this role, she testified regarding
death by strangulation in general. Her expert opinion that a strangling victim will lose
consciousness within 10 to 30 seconds was unrebutted, as was her testimony that death
would result from continued strangulation for another three to six minutes. When asked
whether an individual whose heart was compromised would still require three to six minutes
to die from strangulation, she answered “Correct.” In her expert opinion, even if a strangling
victim suffered from undiagnosed heart disease or was at increased risk of heart disease, it
would still require three to six minutes of the perpetrator’s squeezing her neck with his
hands, with sufficient pressure to block blood flow to and from the brain, to cause death.
Again, her expert opinion on this point was unrebutted.
¶ 147 Defendant’s argument is that because his wife may have suffered from some undiagnosed
heart or other ailment, she may have died more quickly than a healthy individual would have
died from strangulation. He does not deny that he strangled her or that his acts caused her
death. Instead he suggests that the court could not reasonably infer knowledge on his part
because the length of time it took for her to die may have been so brief that he did not have
time to consider the possible results of his actions.
¶ 148 His argument is contradicted by the expert testimony of Dr. Arangelovich. In addition,
the trial court’s comments upon rendering its verdict clearly indicate that the court took her
expert opinion into account. However long it took between the victim’s losing consciousness
and her death—three minutes, four minutes, five minutes, or six minutes—defendant
maintained sufficient pressure with his hands to cause her death. The court concluded that
one could not maintain such pressure for such a length of time without knowing that the act
could cause death or great bodily harm. See 720 ILCS 5/9-1(a)(2) (West 2002) (“A person
-25-
who kills an individual without lawful justification commits first degree murder if, in
performing the acts which cause the death: *** he knows that such acts create a strong
probability of death or great bodily harm to that individual.”).
¶ 149 Third, this was a bench trial and the court, in explaining the basis for its verdict, relied
entirely on the defendant’s own statement and on the portion of Dr. Arangelovich’s
testimony regarding the time necessary to cause death by strangulation. The court’s
comments make it clear that the contents of the autopsy report had a negligible effect on its
verdict.
¶ 150 Thus, we conclude that in this bench trial, the admission of the autopsy report and of any
opinion Dr. Arangelovich formed based on the report—if errors at all—were harmless
beyond a reasonable doubt. The defendant does not dispute the cause and manner of death
or that he is guilty of some form of homicide. The expert testimony that death by
strangulation would have taken three to six minutes was properly admitted and properly
considered by the trial court in determining his mental state at the time he killed his wife.
Even if our assessment of the admissibility of the autopsy report in this case is eventually
shown to be incorrect, defendant is not entitled to a new trial.
¶ 151 C. Sufficiency of the Evidence
¶ 152 Defendant argues that even if the autopsy report and the testimony of Dr. Arangelovich
were properly admitted, the State did not prove knowing murder beyond a reasonable doubt
and, at most, proved the lesser offense of involuntary manslaughter. In the alternative, he
argues that if the evidence does support a verdict of knowing murder, the offense was
mitigated because he killed while under the influence of a sudden, intense passion
engendered by mutual combat, and he should be convicted of second degree murder.
¶ 153 For reasons already explained, we reject these arguments.
¶ 154 First, knowing murder was sufficiently proven based on defendant’s own statement and
the expert testimony of Dr. Arangelovich.
¶ 155 Second, the killing cannot be mitigated to second degree murder because second degree
murder, by definition, is an intentional or knowing murder that is less blameworthy than first
degree murder because of the presence of either one of two mitigating factors. 720 ILCS 5/9-
2(a) (West 2002). Defendant cannot now claim that his guilt of knowing murder is mitigated
by sudden, intense passion resulting from serious provocation when his entire defense was
based on his insistence that he did not kill knowingly.
¶ 156 The appellate court noted the “incongruity” of defendant’s argument that, on the one
hand, denied the requisite mental state for knowing murder and, on the other hand,
essentially conceded “that the State has proved intentional or knowing murder beyond a
reasonable doubt in order to raise the presence of mitigating factors.” 405 Ill. App. 3d at 314-
15. We agree with the appellate court’s thorough analysis of this issue and see no need to
repeat it here. See 405 Ill. App. 3d at 314-18.
-26-
¶ 157 CONCLUSION
¶ 158 We, therefore, affirm the judgment of the appellate court, albeit for reasons other than
those offered in the appellate court opinion.
¶ 159 Appellate court judgment affirmed.
¶ 160 CHIEF JUSTICE KILBRIDE, dissenting:
¶ 161 I disagree with the majority opinion on three bases. First, the majority erroneously relies
on Williams v. Illinois, 567 U.S. ___,132 S. Ct. 2221
(2012) (plurality op.), a fractured
opinion with no majority support for its rationale. Second, even if Williams represented a
majority opinion, Williams is wholly distinguishable from this case on the facts. Finally, I
disagree with the opinion employing a harmless-error analysis in the event the Supreme
Court should disagree with the opinion’s conclusion that the autopsy report was not
testimonial.
¶ 162 The majority applies the flawed analysis from Justice Alito’s opinion in Williams. That
analysis was not joined by any other justice of the Supreme Court. As Justice Kagan (joined
by Justices Scalia, Ginsburg, and Sotomayor) notes in her dissenting opinion in Williams,
“The Court today disagrees, though it cannot settle on a reason why.” Williams, 567 U.S. at
___,132 S. Ct. at 2265
(Kagan, J., dissenting, joined by Scalia, Ginsburg and Sotomayor,
JJ.). This is because, although the opinion was joined by three other justices, “[f]ive Justices
specifically reject[ed] every aspect of its reasoning and every paragraph of its explication.”
Williams, 567 U.S. at ___,132 S. Ct. at 2265
. Even though five justices agreed to approve
the admission of the DNA profile in Williams, no single rationale controls that decision.
¶ 163 When there is no majority support for the rationale of an opinion, the holding of the
Court can be viewed as the position taken by the members who concurred in the judgment
on the narrowest grounds. See Marks v. United States, 430 U.S. 188, 193 (1977). Here, the
majority bootstraps the positions of justices in opinions prior to Williams to justify its use of
Justice Alito’s “primary purpose” test even though that test did not garner majority support.
The most that can be gleaned from the plurality opinion in Williams is simply that a majority
held the admission of the DNA profile under the facts of that case was permissible. The
majority erroneously relies on the analysis of one justice in Williams to support its analysis
in this case.
¶ 164 Even if the analysis in Williams had garnered a majority vote, Williams is factually
distinguishable, and this case should be guided by Crawford v. Washington, 541 U.S. 36
(2004), Melendez-Diaz v. Massachussets, 557 U.S. 305 (2009), and Bullcoming v. New
Mexico, 564 U.S. ___,131 S. Ct. 2705
(2011). In Crawford, the Supreme Court held that
“testimonial statements of a witness who [does] not appear at trial” are not admissible
“unless he [is] unavailable to testify, and the defendant *** had a prior opportunity for cross-
examination.” Crawford, 541 U.S. at 53-54. Under Crawford, an out-of-court statement that
is “testimonial” is admissible only when the defendant had the prior opportunity to cross-
examine the person who made the testimonial statement. Crawford, 541 U.S. at 53-54.
-27-
¶ 165 In Melendez-Diaz, the Supreme Court held that Crawford applies to forensic reports.
Melendez-Diaz, 557 U.S. at 310-11. The Court determined that certificates of analysis stating
that a substance was cocaine had a clear “evidentiary purpose” since they were “ ‘made under
circumstances which would lead an objective witness reasonably to believe that [they] would
be available for use at a later trial.’ ” Melendez-Diaz, 557 U.S. at 310-11 (quoting Crawford,
541 U.S. at 52). Accordingly, the Court held that the defendant had the right to cross-
examine the analysts who had authored the certificates of analysis. Melendez-Diaz, 557 U.S.
at 310-11.
¶ 166 The Supreme Court applied the Melendez-Diaz analysis to a blood-alcohol forensic report
in Bullcoming, 564 U.S. ___,131 S. Ct. 2705
. In Bullcoming, the State attempted to
introduce a blood-alcohol report’s finding through the testimony of a person who worked at
the laboratory but did not perform or observe the blood test or certify its results. The Court
held that “[t]he accused’s right is to be confronted with” the actual analyst, unless the analyst
is unavailable and the accused “had an opportunity, pretrial, to cross-examine” the analyst.
Bullcoming, 564 U.S. at ___,131 S. Ct. at 2708
.
¶ 167 The autopsy report at issue in this case falls squarely within the parameters of Crawford,
Melendez-Diaz, and Bullcoming. Williams, even if it were applicable to this case, is
distinguishable on the facts. In Williams, the forensic report showed a DNA profile produced
by a laboratory analyst from a vaginal swab taken from a woman after she was raped. The
DNA report in Williams was prepared primarily to catch a rapist who was still at large.
Williams, 567 U.S. at ___,132 S. Ct. at 2225
.
¶ 168 Here, the autopsy report clearly and unequivocally shows that it was prepared to obtain
evidence for use against defendant. The report itself shows that its results were based, in part,
on the scene and police investigations. The medical examiner case report indicates the
following:
“On 24 June 2004 at approximately 1303 hrs. Detective T. Franklin #005 of the
Robbins Police Department notified the Medical Examiner’s Office of the following.
At approximately 1053 hrs. this date, a Mrs. Sandra Cook *** contacted the Robbins
Police and requested a well being check be made at her home. She related that her
son in law had called her and told her ‘He had done something bad to his wife
Latyonia.’
Officers Evans #376 and Harris #373 contacted Mr. Terrell Thomas a manager
at the housing complex where the subject resided, who met them at the scene and let
them into the subject[’]s apartment where they discovered the subject lying in bed
unresponsive[.] Robbins Fire Department responded to no avail.
Detective Franklin also related that the subjects[’]s husband is now in custody
and admitted choking his wife.
The subject along with a copy of the Police Report were ordered into the Forensic
Institute.”
¶ 169 Here, the autopsy report was initiated by police, in the midst of a criminal investigation.
Defendant was in custody and had admitted strangling the victim. A copy of the police report
was sent to the medical examiner with the victim’s body. Thus, the autopsy report in this
-28-
case was prepared primarily to establish and prove facts relevant to use as evidence in a
future prosecution of defendant. Under the Supreme Court’s analysis in Crawford, Melendez-
Diaz, and Bullcoming, the substance of the autopsy report could come into evidence only if
defendant had the opportunity to cross-examine the responsible medical examiner. That did
not happen in this case.
¶ 170 I also disagree with the majority conducting a harmless-error analysis “[e]ven if our
assessment of the admissibility of the autopsy report in this case is eventually shown to be
incorrect.” Supra ¶ 150. The majority apparently believes the Supreme Court may disagree
with the opinion’s conclusion that the autopsy report was not testimonial. This entire
harmless-error analysis is dicta and is purely advisory.
¶ 171 For the foregoing reasons, I respectfully dissent from the majority opinion.
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