                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Dobbey, 2011 IL App (1st) 091518




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    LESTER DOBBEY, Defendant-Appellant.



District & No.             First District, Fifth Division
                           Docket No. 1-09-1518


Filed                      August 19, 2011
Rehearing denied           October 28, 2011
Held                       The appellate court affirmed the summary dismissal of defendant’s
(Note: This syllabus       postconviction petition alleging that his appellate counsel was ineffective
constitutes no part of     in failing to challenge the admission of the deceased victim’s
the opinion of the court   identification of defendant as the shooter and the admission of the
but has been prepared      testimony of a medical examiner who did not perform the autopsy on the
by the Reporter of         victim.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 00-CR-10872; the
Review                     Hon. Michael Brown, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Alan Goldberg, and Beth Herndobler, all of State
Appeal                     Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                           Annette Collins, and Marci Jacobs, Assistant State’s Attorneys, of
                           counsel), for the People.


Panel                      PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment
                           of the court, with opinion.
                           Justices Howse and Epstein concurred in the judgment and opinion.



                                              OPINION

¶1          Defendant Lester Dobbey appeals from an order of the circuit court of Cook County
        summarily dismissing his pro se petition for relief under the Post-Conviction Hearing Act
        (Act) (725 ILCS 5/122-1 et seq. (West 2008)). On appeal, defendant contends that the circuit
        court erred in dismissing his petition because he set forth an ineffective assistance of counsel
        claim that had an arguable basis in law and in fact. For the following reasons, we affirm the
        decision of the circuit court of Cook County.

¶2                                         BACKGROUND
¶3          Defendant was charged with multiple counts of first degree murder, attempted first
        degree murder, aggravated battery with a firearm, aggravated discharge of a firearm, and
        aggravated battery for firing a rifle at three individuals, striking one and killing another.
        Following a jury trial, defendant was found guilty of the first degree murder of victim Dorsey
        Williams, attempted first degree murder and aggravated battery with a firearm of Michael
        Cole, and not guilty of attempted first degree murder of a third person, Terence Robinson.
        Defendant was sentenced to consecutive sentences of 45 years’ imprisonment for first degree
        murder and 6 years’ imprisonment for attempted first degree murder.
¶4          Prior to trial, defense counsel filed a motion to suppress his statement to the police,
        alleging that his statement was coerced when police officers refused to allow him to make
        a telephone call in order to hire an attorney until after he gave his statement. The trial court
        denied the motion.
¶5          Defense counsel then filed a motion in limine to bar the State from making reference to
        defendant’s or any other witness’s gang affiliation. The trial court denied the motion.
¶6          Numerous individuals testified at trial, including the deceased’s mother, Cole, Robinson,
        a paramedic, a fingerprint expert, an assistant State’s Attorney, and Chicago police officers.
        We recite here only the details relevant to the issue before us.

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¶7         At trial, Cole, the victim of the attempted murder, testified that he had known defendant
       for most of his life and had gone to school with defendant’s brother. Cole and defendant
       lived on the same block and saw one another daily for “most of his life.” In February and
       March 2000, Cole was a member of the Gangster Disciples street gang. Defendant was a
       member of a rival street gang, the Mickey Cobras. Cole disliked defendant because they were
       in rival gangs.
¶8          On February 25, 2000, Cole was on 92nd Street and Cottage Grove, riding in a stolen van
       from which shots were fired at defendant. Cole was not charged in the incident. Toward the
       end of March 2000, Cole was on the corner of 92nd Street and Cottage Grove when
       defendant and two neighborhood boys pulled up next to him in a car. Defendant asked Cole
       why he was staring at him, and Cole answered that he was staring at him because he disliked
       him. Defendant said Cole should not tell him that and warned that one day their “paths would
       cross.”
¶9          Cole was at his girlfriend’s house at approximately 9 p.m. on March 31when his friend
       and fellow gang member, Terence Robinson, asked him to drive him home. Robinson got
       into the backseat of the car and fell asleep while he waited for Cole. Cole stayed with his
       girlfriend awhile longer. Eventually, Cole drove to 91st Street and Dauphin, where he saw
       defendant pass by in a car. Thereafter, Cole’s uncle, Dorsey Williams, flagged down Cole’s
       car and got inside. Williams rode in front. Robinson was still asleep in the backseat.
¶ 10        At approximately midnight, as Cole approached the intersection of 92nd Place and St.
       Lawrence Avenue, he heard five to six gunshots. Cole was struck in his upper right arm.
       Williams was struck in the chest and slumped onto Cole.
¶ 11        Cole looked over his shoulder and saw defendant standing on the corner firing a rifle.
       Cole had an unobstructed view of defendant for two to three seconds, from a distance of 15
       to 20 feet. Cole also saw a black male with defendant, but was unable to identify him.
¶ 12        Robinson testified that he awoke to the gunshots but did not sit up. When Cole, who had
       been shot, could no longer drive, Robinson moved to the front seat, took the wheel, and
       drove to a gas station two or three minutes away. Robinson went into the gas station and
       asked the clerk to call an ambulance. When he came back outside, Cole was helping
       Williams out of the vehicle. Williams was unable to walk. Williams “regained
       consciousness” as Robinson approached, and Cole laid him on the ground. Robinson heard
       Williams say, “I can’t believe I’m shot. I’m shot. I’m shot.” Robinson then heard Dorsey
       exclaim at least two times that it was defendant who shot him. Paramedics arrived and
       transported Williams to the hospital, where he subsequently died.
¶ 13        At the gas station, Cole provided police officers with a description and approximate
       address for defendant. At the hospital, Cole again provided the same address and description
       to another detective. On April 1, 2000, while Cole was still hospitalized, he viewed a photo
       array and identified a photograph of defendant.
¶ 14        Defendant was arrested on April 2, 2000, and brought to the police station. Chicago
       police detective Martin Tully testified that he and Detective Krakauski met with defendant
       in an interview room at approximately 12:15 p.m. Detective Tully told defendant that they
       wanted to speak with him about the March 31 shooting of Williams and Cole. Defendant

                                                -3-
       initially told the detectives that he was at his girlfriend Simone’s house at the time of the
       shooting. Defendant did not know Simone’s last name or address. Detective Tully
       unsuccessfully attempted to find Simone. Defendant signed a consent to search form, giving
       officers permission to search his home.
¶ 15        On April 3, Cole identified defendant in a lineup. Thereafter, Assistant State’s Attorney
       Blakey (ASA) and Detective Tully renewed their interrogation of defendant. Defendant made
       a statement, again telling them that he was with Simone at the time of the shooting but,
       according to Detective Tully, also stated that he did not like the ASA, that he was very tired
       and did not want to talk to the ASA any longer. The interrogation was terminated.
¶ 16        Detective Tully testified that, at about 9 a.m. on April 3, defendant knocked on the locked
       door to the interview room and asked to use the restroom. On the way, defendant told
       Detective Tully that he was not with Simone during the shooting after all, that he did not
       want her involved, and that he did not want the police to bother her family. He claimed he
       was with his friend Kenny Calhoun at the time of the shooting.
¶ 17        Detective William Higgins testified that later that day, defendant again knocked on the
       interview room door. When Detectives Higgins and Krakauski answered the door, defendant
       told them that he wanted to tell the truth about the homicide. Defendant stated that on March
       31, 2000, he was near 92nd and Cottage Grove Avenue when he saw Cole drive past and
       point a gun at him. Defendant then obtained a rifle and went to 92nd Place and St. Lawrence
       Avenue. At approximately midnight, defendant again saw Cole driving nearby. Defendant
       fired 20 rounds from his rifle at Cole’s car. Detective Higgins asked defendant where the rifle
       was now, and defendant initially stated that he threw it into a river. Defendant later stated
       that he left the rifle by a nearby garbage can. Police searched for the rifle, but did not recover
       a weapon.
¶ 18        ASA Eileen Austin Murphy testified that she met with defendant at the police station on
       April 3, 2000, and informed him of his Miranda rights. Defendant agreed to make a
       handwritten statement. ASA Murphy read the statement in court. In it, defendant stated that
       he previously was a member of the Mickey Cobra street gang and that Cole was a member
       of rival gang the Gangster Disciples. Defendant stated that, in February 2000, some Gangster
       Disciples shot at him from a van. Cole was in the van from which the shots were fired.
¶ 19        At approximately 10 p.m. on March 31, 2000, defendant was driving his car when
       another car pulled up on the passenger side of his car. Defendant looked over and saw Cole
       driving the car and aiming a gun at him. Defendant drove away, met with some friends, and
       smoked marijuana. Then he obtained a gun and walked to 92nd Place and St. Lawrence
       Avenue.
¶ 20        When defendant saw Cole driving on 92nd Place he shot at the car approximately 10
       times. Defendant stated that he wanted to shoot Cole.
¶ 21        Dr. Kendall Crowns, a forensic pathologist at the Cook County medical examiner’s
       office, testified as an expert in forensic pathology that he had reviewed the photographic
       slides and autopsy report performed by Dr. Filkins on the victim’s body. At the time of trial,
       Dr. Filkins no longer worked for the medical examiner’s office. Dr. Crowns testified that a
       bullet entered Williams’ right chest and exited out of the mid-back. There was no evidence

                                                  -4-
       of close-range firing. Dr. Crowns concluded to a reasonable degree of medical certainty that
       the cause of Williams’ death was a gunshot wound to the chest and that the manner of death
       was homicide.
¶ 22        Defendant offered no evidence on his behalf. The jury returned a verdict of guilty of the
       first degree murder of Williams and the attempted first degree murder of Cole. He was found
       not guilty of the attempted first degree murder of Robinson.
¶ 23        On July 15, 2002, defense counsel filed a motion for new trial. However, defendant
       informed the trial court that he no longer wanted defense counsel to represent him because
       he felt defense counsel had provided “bad representation.” Defendant then filed a pro se
       motion for a new trial. In August 2002, defense counsel was discharged.
¶ 24        After hearing arguments in October 2002, the court denied defendant’s pro se motion for
       a new trial. Following arguments in aggravation and mitigation, the trial court sentenced
       defendant to consecutive sentences of 45 years’ imprisonment for first degree murder and
       6 years’ imprisonment for attempted murder.
¶ 25        Defendant appealed, contending that: (1) the trial court erred by admitting gang evidence;
       (2) the prosecutor made improper remarks during opening statement and closing argument;
       (3) the trial court failed to conduct an adequate inquiry into defendant’s allegations of
       ineffective assistance of counsel before denying his pro se motion for a new trial; (4) the trial
       court erred by failing to strictly comply with Illinois Supreme Court Rule 401 (eff. July 1,
       1984) before allowing defendant to proceed pro se on his posttrial motions; and (5) his
       sentence was unconstitutional where the trial court imposed a sentence enhancement. People
       v. Dobbey, No. 1-02-3452 (2004) (unpublished order under Supreme Court Rule 23). This
       court found that: (1) the trial court did not err by admitting evidence of defendant’s and
       Cole’s gang affiliations; (2) the prosecutor erred in closing argument, but that the error did
       not require reversal due to the overwhelming evidence of defendant’s guilt; and (3)
       defendant’s sentence enhancement was proper. We also found that the trial court gave
       conflicting and sometimes incorrect admonishments regarding the possible sentence for first
       degree murder and the consecutive nature of the sentence for attempted murder. People v.
       Dobbey, No. 1-02-3452 (2004) (unpublished order under Supreme Court Rule 23).
       Accordingly, we vacated defendant’s sentence and remanded the case for further posttrial
       proceedings. People v. Dobbey, No. 1-02-3452 (2004) (unpublished order under Supreme
       Court Rule 23).
¶ 26        Upon remand to the trial court, a public defender was appointed to represent defendant.
       However, defendant again chose to represent himself pro se in all posttrial matters. The trial
       court admonished defendant pursuant to Rule 401(a) and then granted his request. Defendant
       filed another pro se motion for a new trial raising 67 allegations of error. After a hearing on
       the motion, the trial court denied the motion for a new trial. The trial court again heard
       arguments in aggravation and mitigation and sentenced defendant to the same sentence as
       before.
¶ 27        Defendant appealed that ruling, contending that the trial court prematurely denied his pro
       se motion for a new trial alleging ineffective assistance of counsel without an evidentiary
       ruling. People v. Dobbey, No. 1-05-2800 (2008) (unpublished order under Supreme Court


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       Rule 23). We affirmed defendant’s convictions and sentences. People v. Dobbey, No. 1-05-
       2800 (2008) (unpublished order under Supreme Court Rule 23).
¶ 28        Defendant then filed a pro se petition under section 2-1401 of the Code of Civil
       Procedure (735 ILCS 5/5-1401 (West 2008)) for relief from judgment which was dismissed
       by the trial court. The office of the State Appellate Defender, who represented defendant on
       appeal, filed a motion for leave to withdraw as counsel pursuant to Pennsylvania v. Finley,
       481 U.S. 551 (1987). This court found no issue of arguable merit, allowed counsel’s motion,
       and affirmed the judgment of the trial court. People v. Dobbey, No. 1-08-0100 (2009)
       (unpublished order under Supreme Court Rule 23).
¶ 29        In February 2009, defendant filed a pro se petition for postconviction relief, alleging, in
       relevant part, that: (1) appellate counsel was ineffective for failing to raise the claim that trial
       counsel should have challenged the trial court allowing the decedent’s excited utterance
       identifying defendant as the shooter; and (2) appellate counsel was ineffective for failing to
       challenge the trial court allowing the hearsay testimony of Dr. Crown as to the autopsy work
       of Dr. Filkins, who no longer worked for the Cook County medical examiner’s office. The
       trial court summarily dismissed the petition as frivolous and patently without merit.
       Defendant filed a motion to reconsider that ruling, which the court denied.
¶ 30        Defendant appeals the summary dismissal of his postconviction petition, alleging only
       that appellate counsel was ineffective for failing to challenge the trial court’s admission of:
       (1) the decedent’s statement identifying defendant as the shooter; and (2) the testimony of
       a medical examiner who did not perform the autopsy on the victim. For the following
       reasons, we affirm.

¶ 31                                        ANALYSIS
¶ 32                            I. Williams’ Out-of-Court Statement
¶ 33        Defendant first contends that the trial court erred in summarily dismissing his
       postconviction petition where his trial counsel failed to provide effective assistance by failing
       to raise the claim that the admission, via Robinson’s testimony, of the victim’s statement
       identifying defendant as the shooter was erroneous. Specifically, defendant claims the
       statement was testimonial and violated his right to confrontation under Crawford v.
       Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006). We
       disagree.
¶ 34        The Post-Conviction Hearing Act provides a remedy for defendants whose constitutional
       rights were substantially violated in their original trial or sentencing hearing when such a
       claim was not, and could not have been, previously adjudicated. People v. Enis, 194 Ill. 2d
       361, 375 (2000). An action for postconviction relief is a collateral attack upon a prior
       conviction and sentence, rather than a surrogate for a direct appeal. People v. Tenner, 206
       Ill. 2d 381, 392 (2002).
¶ 35        The summary dismissal of a postconviction petition is appropriate at the first stage of
       postconviction review where the circuit court finds that it is frivolous and patently without
       merit (725 ILCS 5/122-2.1(a)(2) (West 2008)), i.e., the petition has no arguable basis in
       either law or fact. People v. Hodges, 234 Ill. 2d 1, 11-12 (2009). To have no arguable basis,

                                                   -6-
       the petition must be based on an “indisputably meritless legal theory or a fanciful factual
       allegation.” Hodges, 234 Ill. 2d at 16. In order for a defendant to circumvent dismissal at the
       first stage, he must allege the “gist” of a constitutional claim, which is a low threshold.
       Hodges, 234 Ill. 2d at 9-10. This standard requires only that a defendant plead sufficient facts
       to assert an arguable constitutional claim. People v. Brown, 236 Ill. 2d 175, 184 (2010). The
       summary dismissal of a postconviction petition is a legal question which we review de novo.
       Hodges, 234 Ill. 2d at 9; People v. Edwards, 197 Ill. 2d 239, 247 (2001). “Although the trial
       court’s reasons for dismissing [the] petition may provide assistance to this court, we review
       the judgment, and not the reasons given for the judgment.” People v. Jones, 399 Ill. App. 3d
       341, 359 (2010).
¶ 36        To establish a claim of ineffective assistance of counsel, a defendant must show that his
       attorney’s representation fell below an objective standard of reasonableness and that he was
       prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88
       (1984); People v. Coulter, 352 Ill. App. 3d 151, 157 (2004). Failure to make the requisite
       showing of either deficient performance or sufficient prejudice defeats the claim. People v.
       Palmer, 162 Ill. 2d 465, 475-76 (1994).
¶ 37        A court reviewing the summary dismissal of a postconviction petition which alleges the
       ineffective assistance of counsel must determine whether it is arguable that counsel’s
       performance fell below an objective standard of reasonableness and whether it is arguable
       that defendant was prejudiced. Hodges, 234 Ill. 2d at 17. This test applies equally to claims
       of ineffective assistance of appellate counsel. Jones, 399 Ill. App. 3d at 368. “Accordingly,
       ‘[a] defendant who contends that appellate counsel rendered ineffective assistance, e.g., by
       failing to argue an issue, must show that the failure to raise the issue was objectively
       unreasonable and that, but for this failure, defendant’s conviction or sentence would have
       been reversed.’ ” Jones, 399 Ill. App. 3d at 372 (quoting People v. Griffin, 178 Ill. 2d 65, 74
       (1997)). Unless the underlying issue is meritorious, the defendant cannot show prejudice
       from the failure to raise it on appeal. People v. Coleman, 168 Ill. 2d 509, 523 (1995).
¶ 38        The statement with which we are concerned here is that of Terence Robinson wherein
       he stated at trial that he heard decedent Williams say that it was defendant who shot him.
       Robinson testified that he heard Williams say this at the gas station when Williams was laid
       out on the ground, just minutes after having been shot through the chest and having been in
       and out of consciousness. Williams’ statement occurred just moments before paramedics
       arrived, finding Williams “having trouble breathing,” “very sweaty,” and “pale.” His right
       lung was not functioning, and he had a good pulse but “no blood pressure.” The paramedics
       further noted that Williams was “talking to us, able to give us his address, where he lived,
       his medical history.” They had no trouble understanding what he said to them.
¶ 39        Immediately thereafter, Williams was transported to the hospital where he underwent
       surgery and died later that same day. An autopsy revealed that a bullet entered the right chest,
       penetrated the right chest cavity, continued through the lower lobe of the right lung,
       perforated and lacerated the liver, perforated the thoracic spine and exited out of Williams’
       mid-back.
¶ 40        The trial court admitted the statement in question as an excited utterance or spontaneous


                                                 -7-
       declaration. Defendant does not argue the evidentiary-based merits of admitting the statement
       as an excited utterance, but instead focuses his argument on constitutional grounds, asserting
       that allowing the statement was error because the statement was testimonial. The State does
       not address the trial court’s admittance of the statement as an excited utterance, either.
       Instead, the State counters that, although the trial court did not find and the State did not
       argue at trial that the statement should have been admitted as a dying declaration, the “record
       supports such a characterization.” The State argues the merits of admitting the statement as
       a dying declaration, then argues that the statement was not testimonial under Crawford.
¶ 41       Although from the outset defendant would have us review the propriety of the admission
       of this statement under confrontation clause principles, our supreme court has directed that,
       when reviewing the admissibility of out-of-court statements into evidence, we must first
       determine whether those statements “ ‘pass[ ] muster as an evidentiary matter.’ ” People v.
       Melchor, 226 Ill. 2d 24, 34 (2007) (quoting In re E.H., 224 Ill. 2d 172, 179 (2006)). Only
       once the statements have been found admissible as an evidentiary matter may the appellate
       court consider “ ‘constitutional objections–including Crawford-based confrontation clause
       claims.’ ” Melchor, 226 Ill. 2d at 34 (quoting In re E.H., 224 Ill. 2d at 179-80). The Melchor
       court, quoting its previous decision in In re E.H. stated:
                “We reasoned:
                    ‘Only once the statement has first been found admissible as an evidentiary matter
                    should constitutional objections–including Crawford-based confrontation clause
                    claims–be dealt with. [Citations.] This is the only analytical ‘flow chart’ that
                    comports with the rule that courts must avoid considering constitutional
                    questions where the case can be decided on nonconstitutional grounds.’ ”
                    Melchor, 226 Ill. 2d at 34 (quoting In re E.H., 224 Ill. 2d at 179-80).
       Accordingly, we first consider whether Robinson’s testimony regarding decedent Williams’
       statement was properly admitted hearsay evidence. We find that it was.

¶ 42                       a. Statement Admitted as an Excited Utterance
¶ 43       Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
       People v. Gonzalez, 379 Ill. App. 3d 941, 954 (2008). Generally, hearsay statements are
       inadmissible, but the rule has certain exceptions. People v. Dunmore, 389 Ill. App. 3d 1095,
       1106 (2009). The trial court has discretion to determine whether statements are hearsay and,
       if so, whether admissible under an exception. People v. Spicer, 379 Ill. App. 3d 441, 449
       (2008). Thus, we will reverse a trial court’s hearsay ruling only for an abuse of discretion.
       Spicer, 379 Ill. App. 3d at 449. An abuse of discretion occurs where the trial court’s ruling
       is arbitrary, fanciful or unreasonable, or where no reasonable person would take the view
       adopted by the court. People v. Illgen, 145 Ill. 2d 353, 364 (1991).
¶ 44       Hearsay exists where a third party testifies to statements made to him by another
       nontestifying party that identify the accused as the perpetrator of a crime. People v. Yancy,
       368 Ill. App. 3d 381, 384-85 (2005). A spontaneous declaration or excited utterance is a
       recognized exception in hearsay jurisprudence. People v. Williams, 193 Ill. 2d 306, 352
       (2000). The rationale behind the rule is:

                                                -8-
               “ ‘The admissibility of such exclamation is based on our experience that, under
               certain external circumstances of physical or mental shock, a stress of nervous
               excitement may be produced in a spectator which stills the reflective faculties and
               removes their control, so that the utterance which then occurs is a spontaneous and
               sincere response to the actual sensations and perceptions already produced by the
               external shock. Since this utterance is made under the immediate and uncontrolled
               domination of the senses, rather than reason and reflection, and during the brief
               period when consideration of self-interest could not have been fully brought to bear,
               the utterance may be taken as expressing the real belief of the speaker as to the facts
               just observed by him.’ ” People v. Damen, 28 Ill. 2d 464, 471 (1963) (quoting Keefe
               v. State, 72 P.2d 425, 427 (Ariz. 1937)).
       For a hearsay statement to be admissible under the excited utterance or spontaneous
       declaration exception, there must be: (1) an occurrence sufficiently startling to produce a
       spontaneous and unreflecting statement; (2) an absence of time for the declarant to fabricate
       the statement; and (3) the statement must relate to the circumstances of the occurrence.
       Williams, 193 Ill. 2d at 352. To be admissible, then, a statement must be spontaneous,
       excited and unreflecting. To this end, courts consider the totality of the circumstances,
       including: the time elapsed between the event and the utterance, the nature of the event, the
       declarant’s mental and physical condition, and the presence of self-interest. People v.
       Georgakapoulos, 303 Ill. App. 3d 1001, 1012 (1999).
¶ 45       Here, Williams’ statement identifying defendant as the shooter was made after he had
       been shot and mortally wounded, making him unavailable at trial. It was made following an
       incident in which defendant aimed a rifle at the car in which Williams was riding, shooting
       both the driver and a passenger. The injured driver was then unable to control the vehicle and
       Robinson, awakened from his nap in the backseat, had to take the wheel. Robinson drove the
       vehicle to a nearby gas station to call for help. This scenario is certainly “sufficiently startling
       to produce a spontaneous and unreflecting statement.” The time which elapsed between the
       shooting and the statement was merely a matter of minutes; Williams made the statement just
       minutes after being shot, as he was lying on the ground experiencing the physical results of
       the gunshot through his chest, and before he had time to reflect upon the event. Moreover,
       Williams’ statement occurred just moments before paramedics arrived, finding Williams
       “having trouble breathing,” “very sweaty,” and “pale.” His right lung was not functioning,
       and he had a good pulse, but “no blood pressure” at all. Finally, the statement obviously
       related to the circumstances of the occurrence, as defendant was identifying to Robinson,
       who was asleep when the shooting occurred, who the shooter was. Appellate counsel was not
       ineffective here, where this statement falls within the hearsay exception.
¶ 46       We note that the State urges us to consider whether this statement should have been
       admitted as a dying declaration. We decline to do so. To qualify as a dying declaration, it
       must be shown that: (1) the declaration pertained to the cause or the circumstance of the
       homicide; (2) the declarant must have believed that death was imminent; and (3) the
       declarant must possess the mental faculties sufficient to give an accurate statement about the
       circumstances of the homicide. People v. Hatchett, 397 Ill. App. 3d 495, 502 (2009). A
       reviewing court can affirm the trial court on any basis supported by the record. People v.

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       Durr, 215 Ill. 2d 283, 296 (2005). However, because we have determined that the trial court
       properly admitted this statement as an excited utterance, an analysis of whether the statement
       would also have been properly admitted as a dying declaration would be redundant.

¶ 47                                     b. The Crawford Claim
¶ 48        We next consider whether the introduction of Williams’ statement violated defendant’s
       sixth amendment right to confrontation because that statement was testimonial and Williams
       did not testify at trial so as to be subject to cross-examination. We proceed to this
       constitutional Crawford challenge because we have already considered that statement in the
       evidentiary context and found that its admission was not erroneous. See Melchor, 226 Ill. 2d
       at 35 (“[o]nly if the trial court’s *** ruling was not erroneous, or was erroneous but harmless
       as an evidentiary matter, should the appellate court turn to the constitutional challenge to the
       evidence”); see also People v. Spicer, 379 Ill. App. 3d at 449 (“Hearsay analysis and sixth
       amendment analysis are completely different. A statement may be admissible under hearsay
       rules but barred by the sixth amendment and vice versa.”).
¶ 49        The confrontation clause of the sixth amendment to the United States Constitution
       provides that “[i]n all criminal prosecutions, the accused shall enjoy the right *** to be
       confronted with the witnesses against him.” U.S. Const., amend VI. This part of the sixth
       amendment applies to the states through the fourteenth amendment. People v. Stechly, 225
       Ill. 2d 246, 264 (2007). In Crawford, the United States Supreme Court held that because the
       critical safeguard of the confrontation right is the opportunity to cross-examine the witnesses
       against the defendant, testimonial hearsay statements may be admitted into evidence against
       an accused only when: (1) the witness is unavailable to testify; and (2) the defendant had a
       prior opportunity to cross-examine the witness. Stechly, 225 Ill. 2d at 279 (citing Crawford,
       541 U.S. at 53-54).
¶ 50        The Crawford Court declined to define what constitutes a “testimonial” statement, but
       offered some examples of what would constitute a testimonial statement: testimony at
       preliminary hearings, testimony before a grand jury or at a prior trial, in-court guilty plea
       statements of co-conspirators to show the existence of a conspiracy, and statements made
       during police questioning. Crawford, 541 U.S. at 68; People v. Thompson, 349 Ill. App. 3d
       587, 594 (2004).
¶ 51        The Supreme Court further defined “testimonial” in Davis, 547 U.S. at 821-24,
       reiterating that the confrontation clause has no application to nontestimonial statements. See
       Stechly, 225 Ill. 2d at 279 (“ ‘It is the testimonial character of the statement that separates it
       from other hearsay that, while subject to traditional limitations upon hearsay evidence, is not
       subject to the [c]onfrontation [c]lause.’ ” (Emphasis omitted.) (quoting Davis, 547 U.S. at
       821)).
¶ 52        The Davis Court considered statements from two consolidated appeals, Davis v.
       Washington and Hammon v. Indiana, in which criminal defendants raised confrontation
       clause challenges to out-of-court statements which had been admitted at their trials. The first
       was an emergency call to a 911 operator, assumed to be an agent of law enforcement, and the
       second was made to police officers at the scene of a domestic altercation once the altercation

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       had ended. Ultimately, the Court determined that the statements to the officers at the scene
       of the domestic disturbance were testimonial, but the statements to the 911 operator were not.
       In making the distinction between the two statements, the Court explained that statements
       to law enforcement officials are not always testimonial. Instead, whether such statements
       were testimonial depended on the objective manifestations of intent of the police when
       taking the statement:
                “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.” Davis, 547 U.S. at 822.
¶ 53       Differentiating the 911 call from the police investigation of the domestic disturbance
       which had ended, the Court noted that a 911 call was not designed to establish or prove past
       facts, but to describe a circumstance requiring police assistance. In the 911 call, the caller
       related events as they were actually happening while facing an “ongoing emergency,” rather
       than describing past events. The elicited statements were necessary to resolve the emergency
       rather than to investigate past events. Davis, 547 U.S. at 827. In the other situation, the
       victim’s statements were made in response to an officer’s questions in a room away from the
       defendant when there was no immediate threat to the victim. The purpose of the interrogation
       was investigatory: the statements recounted past events, they did precisely what a witness
       would do on direct examination, and they were inherently “testimonial.” Davis, 547 U.S. at
       830-31.
¶ 54       Interpreting Crawford and Davis, our supreme court in Stechly clarified the requisites of
       “testimonial,” holding that a testimonial statement is one which: (1) is made in solemn
       fashion, and (2) is intended to establish a particular fact. Stechly, 225 Ill. 2d at 280 (citing
       Crawford, 541 U.S. at 51); see also People v. Sutton, 233 Ill. 2d 89, 111 (2009) (reaffirming
       the holding in Stechly). Only statements that are testimonial make the speaker a witness
       within the meaning of the confrontation clause. Davis, 547 U.S. at 821. “It is the testimonial
       character of the statement that separates it from other hearsay that, while subject to
       traditional limitations upon hearsay evidence, is not subject to the Confrontation Clause.”
       Davis, 547 U.S. at 821. “[A] testimonial statement of a witness who does not testify at trial
       is never admissible unless (1) the witness is unavailable to testify, and (2) the defendant had
       a prior opportunity for cross-examination. [Citation.] Moreover, *** the confrontation clause
       has no application to nontestimonial statements. [Citations.] Thus, the threshold question in
       confrontation clause analysis is, Are the statements at issue ‘testimonial’?” Stechly, 225 Ill.
       2d at 279. Whether a statement is testimonial is a question of law, and our review is de novo.
       Sutton, 233 Ill. 2d at 112.
¶ 55       After the case before us was briefed, the United States Supreme Court decided Michigan
       v. Bryant, 562 U.S. at ___, 131 S. Ct. 1143 (2011), which examined the parameters of the
       “ongoing emergency” rule established by Davis (statements to police are nontestimonial
       when the “primary purpose of the interrogation” that produced them “is to enable police
       assistance to meet an ongoing emergency” (Davis, 547 U.S. at 822)). Bryant, 562 U.S. at

                                                 -11-
       ___, 131 S. Ct. at 1154-62. The Court in Bryant affirmed the primary-purpose approach to
       its post-Crawford confrontation jurisprudence. Bryant, 562 U.S. at ___, 131 S. Ct. at 1162.
       The Bryant Court considered whether statements made to police shortly after they arrived
       to assist a gunshot victim were testimonial, and held that Davis had directed courts to engage
       in a “primary purpose” inquiry to determine whether the primary purpose of the interrogation
       was to create a record for trial or was for some other purpose, such as responding to an
       ongoing emergency, in which case “the admissibility of a statement is the concern of state
       and federal rules of evidence, not the Confrontation Clause.” Bryant, 562 U.S. at ___, 131
       S. Ct. at 1155.
¶ 56        The facts of Bryant are similar to the case at bar. In response to a radio dispatch that a
       man had been shot, police arrived at the scene of a gas station to find the decedent lying on
       the ground next to his car with a gunshot wound to his abdomen. The decedent appeared to
       be in great pain and spoke with difficulty. Upon being asked by police what had happened,
       the decedent responded that the defendant had shot him approximately 25 minutes earlier
       outside the defendant’s house. Police spoke to the decedent for about 5 to 10 minutes until
       emergency medical services arrived. The decedent was transported to the hospital, where he
       died within a few hours. Bryant, 562 U.S. at ___, 131 S. Ct. at 1150.
¶ 57        The Bryant Court considered the context of the interrogation and found that the statement
       was nontestimonial because the primary purpose of the statement was to respond to an
       ongoing emergency rather than with a future prosecution in mind. Bryant, 562 U.S. at ___,
       131 S. Ct. at 1162-67. It determined there was an ongoing emergency because “an armed
       shooter, whose motive for and location after the shooting were unknown, had mortally
       wounded [the decedent] within a few blocks and a few minutes of the location where the
       police found [the decedent].” Bryant, 562 U.S. at ___, 131 S. Ct. at 1164. It further found
       that a person in the position of the decedent who was mortally wounded, in considerable pain
       and had difficulty talking and breathing, “would [not] have had [the] ‘primary purpose’ ‘to
       establish or prove past events potentially relevant to later criminal prosecution.’ ” Bryant,
       562 U.S. at ___, 131 S. Ct. at 1165 (quoting Davis, 547 U.S. at 822). It also found that the
       informality of the encounter, where the questioning “occurred in an exposed public area,
       prior to the arrival of emergency medical services, and in a disorganized fashion,” would not
       have alerted the decedent “to or focused him on the possible future prosecutorial use of his
       statements.” Bryant, 562 U.S. at ___, 131 S. Ct. at 1166. Accordingly, the Bryant Court held
       that “the circumstances of the encounter as well as the statements and actions of [the
       decedent] and the police objectively indicate that ‘the primary purpose of the interrogation’
       was ‘to enable police assistance to meet an ongoing emergency.’ ” Bryant, 562 U.S. at ___,
       131 S. Ct. at 1166-67 (quoting Davis, 547 U.S. at 822). As such, the statement at issue was
       not testimonial and its admission at trial did not violate the confrontation clause. Bryant, 562
       U.S. at ___, 131 S. Ct. at 1167.
¶ 58        After Bryant, then, to determine whether a particular statement is testimonial, the
       “relevant inquiry is ‘the purpose that reasonable participants would have had’ for their
       questions. [Citation.] ‘When ... the primary purpose of an interrogation is to respond to an
       “ongoing emergency,” its purpose is not to create a record for trial and thus is not within the
       scope of the [confrontation] [c]lause.’ [Citation.]” Graure v. United States, 18 A.3d 743, 757

                                                -12-
       (D.C. 2011). Although the Bryant Court did not specifically address whether the
       confrontation inquiry for police interrogations applies equally to nonpolice interrogations or
       to situations such as the case at bar where spontaneous statements are made to nonpolice
       individuals, where such a similar statement under such similar circumstances was found to
       be nontestimonial when made in response to police questioning, we think it is also
       nontestimonial when made to a mere nonofficial individual. An objective evaluation of the
       circumstances in this case leads us to conclude that the comments made here, in the course
       of an ongoing emergency, were not testimonial.
¶ 59       We have found no Illinois cases directly on point to the case at bar. We have, however,
       found a recent case, Graure v. United States, 18 A.3d 743 (D.C. 2011), from the District of
       Columbia Court of Appeals which is strikingly similar to the instant case. While we are not
       bound by decisions issued by that court, we do find its reasoning instructive. In Graure, the
       defendant set fire to a strip club full of people. As people fled the club, an employee who was
       engulfed in flames during the fire and who later died of his injuries and, thus, was not
       available to testify at trial, identified defendant as the arsonist to two other employees. These
       out-of-court statements were admitted at trial as excited utterances. The court of appeals was
       asked, in relevant part, to determine whether the trial court erred in admitting these
       statements. The defendant argued that the statements were testimonial hearsay and that their
       admission violated his confrontation clause right to confront the witnesses against him.
       Graure v. United States, 18 A.3d at 754-55.
¶ 60       The court, relying on Bryant, found that the trial court did not err in admitting the
       statements where the statements were not testimonial. Graure v. United States, 18 A.3d at
       756-58. It considered the Bryant factors and found that the primary purpose of the statements
       was to address an ongoing emergency. Graure v. United States, 18 A.3d at 757-58. The
       questioners were not police officers, but were managers of the club, neither of whom saw
       what had “caused the fire or whether whatever or (whoever) had caused the fire continued
       to pose a risk to workers and patrons or to the club premises.” Graure v. United States, 18
       A.3d at 757. Moreover, the court found that the injury to the declarant was caused by fire,
       “a weapon that could have continued to pose a threat to those in or near the club.” Graure
       v. United States, 18 A.3d at 758. The scene was one of “confusion and bewilderment” and
       thus did not involve “formal or structured questioning.” Graure v. United States, 18 A.3d at
       758. Finally, the declarant’s medical condition was grave, making it unlikely that the
       managers’ questions would have “ ‘focused him on the possible future prosecutorial use of
       his statements’ ” and, thus, the statements were likely “ ‘simply reflexive.’ ” Graure v.
       United States, 18 A.3d at 758 (quoting Bryant, 562 U.S. at ___, ___, 131 S. Ct at 1162,
       1166).
¶ 61       Turning now to the case before us, under all of the aforementioned precedent, we find
       that Williams’ statement in the case at bar was not testimonial and, therefore, did not violate
       the confrontation clause. The primary purpose of the statement was to respond to an ongoing
       emergency rather than to create a record for trial. Moreover, the statement was not made in
       a solemn fashion.
¶ 62       First, like the declarant in Bryant, Williams made his statement in response to an ongoing
       emergency. He made the statement to Robinson who, although present during the shooting,

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       did not see the shooter. Although they had driven a few blocks from the scene of the
       shooting, it was certainly possible that the shooter could have followed them and still posed
       a threat to them or to others. The existence of an ongoing emergency is a “highly context-
       dependent inquiry.” Bryant, 562 U.S. at ___, 131 S. Ct. at 1158. Here, we find that, like the
       shooter in Bryant and Graure, defendant could have caused further mayhem because he
       remained on the loose and armed immediately following the shooting.
¶ 63       Second, a person in Williams’ position who was mortally wounded and in serious pain
       would not have contemplated future prosecution nor had as his primary purpose to establish
       or prove past events relevant to future prosecution. See Bryant, 562 U.S. at ___, 131 S. Ct.
       at 1159.
¶ 64       Third, the informality of the encounter, like that in Bryant and Graure, shows that
       defendant would not have been alerted to the possible future prosecutorial use of his
       statements. The statements here were made in an exposed public gas station parking lot in
       the heat of emergency, prior to the arrival of emergency personnel, as the declarant was
       dragged from a vehicle after suffering a gunshot wound to the chest.
¶ 65       Fourth, Williams’ statement was not made in the “solemn” fashion contemplated by
       Stechly, where the circumstances of the highly charged, ongoing emergency included
       Williams being pulled, mortally wounded, from the vehicle, passing from unconsciousness
       to consciousness, and telling his friend that defendant was the shooter. See Stechly, 225 Ill.
       2d at 281-82 (to be testimonial, a statement must (1) be made in a solemn fashion; and (2)
       be intended to establish a particular fact). Here, the circumstances surrounding Williams’
       identification of defendant as the shooter were neither solemn nor do the objective
       circumstances indicate that a reasonable person in Williams’ position would have been
       thinking about or anticipating a future prosecution. See Stechly, 225 Ill. 2d at 292 (the
       appropriate question in a testimonial analysis is “whether the objective circumstances
       indicate that a reasonable person in the declarant’s position would have anticipated that his
       statement likely would be used in prosecution”). Rather, a reasonable person in Williams’
       position, reacting to an ongoing emergency, would have made the statement as a shocked
       response to having just been shot, or as a warning that defendant might shoot others.

¶ 66                                     c. Harmless Error
¶ 67       Even if the statement here were wrongly admitted, any error is harmless beyond a
       reasonable doubt. People v. Patterson, 217 Ill. 2d 407, 428 (2005); Stechly, 225 Ill. 2d at 304
       (Crawford violations are subject to harmless error analysis). In determining whether a
       constitutional error is harmless, the test to be applied is whether it appears beyond a
       reasonable doubt that the error at issue did not contribute to the verdict obtained. Patterson,
       217 Ill. 2d at 428. Our supreme court has announced three different approaches for
       measuring harmless error in this context: (1) focus on the error to determine whether it might
       have contributed to the conviction; (2) examine the other evidence in the case to determine
       if overwhelming evidence supports the conviction; or (3) determine whether the improperly
       admitted evidence is merely cumulative or duplicates properly admitted evidence. Patterson,
       217 Ill. 2d at 428.


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¶ 68       In the present case, defendant was convicted on evidence including his own confession,
       victim Cole’s eyewitness and identification testimony, and the statement at issue here. On
       defendant’s direct appeal, we found that the evidence against him was overwhelming:
                “Specifically, Cole testified to the shooting and identified defendant as the shooter,
                Robinson testified that both Cole and Williams identified defendant as the shooter,
                and defendant ultimately confessed to the shooting. In light of this overwhelming
                evidence, we find no cause for reversal.” People v. Dobbey, No. 1-02-3452, slip order
                at 10 (2004) (unpublished order under Supreme Court Rule 23).
       The admission of Williams’ statement was brief and was not the crux of the State’s case. In
       this respect and in light of the overwhelming proof of defendant’s guilt, Williams’ statement
       alone was not consequential to the jury’s verdict of guilt.
¶ 69       In conclusion, Williams’ statement identifying defendant as the shooter was properly
       admitted at trial. Moreover, the statement itself was not testimonial and, therefore,
       defendant’s claim that his confrontation rights were violated by its admission is without
       merit. Thus, appellate counsel’s failure to include the issue in defendant’s appeal was not
       objectively unreasonable, and it could not have prejudiced defendant. Moreover, where the
       evidence against defendant was overwhelming even without Williams’ statement, defendant
       is unable to show prejudice where, had appellate counsel raised the issue, his conviction
       would have not been reversed. See Coleman, 168 Ill. 2d at 523. Consequently, defendant has
       failed to establish that his claim has an arguable basis in fact or law. The summary dismissal
       of defendant’s postconviction petition was proper.

¶ 70                           II. The Medical Examiner’s Testimony
¶ 71        Next, defendant contends that his appellate counsel was ineffective for failing to raise the
       claim that the trial testimony of a medical examiner who had not conducted the autopsy
       violated his rights under the confrontation clause of the sixth amendment because defendant
       was unable to cross-examine the examining doctor. We disagree.
¶ 72        Dr. James Filkins performed the autopsy of the victim and produced an autopsy report.
       Dr. Filkins had left the employ of the medical examiner’s office by the time of defendant’s
       trial. Therefore, Dr. Crowns, a fellow in forensic pathology with the Cook County medical
       examiner’s office, testified in defendant’s case. In so doing, Dr. Crowns reviewed Dr.
       Filkins’ autopsy report, and medical records from Christ Hospital where the victim was
       treated prior to his death, photographic slides that were taken of the victim’s body at the time
       of the autopsy, and the toxicology report produced from fluids drawn from the victim’s body
       at the time of the autopsy. From this review, Dr. Crowns was able to reach an opinion as to
       the cause and manner of the victim’s death. Dr. Crowns testified accordingly, and the autopsy
       report was admitted into evidence.
¶ 73        A similar issue was recently decided by our supreme court in People v. Williams, 238 Ill.
       2d 125 (2010), cert. granted, Williams v. Illinois, No. 108505 (June 28, 2011). Defendant
       acknowledges Williams, but argues that it was wrongly decided. In Williams, our supreme
       court rejected the defendant’s claim that his sixth amendment rights were violated by the
       testimony of a forensic analyst who relied upon a DNA report prepared by a private

                                                 -15-
       laboratory. Williams, 238 Ill. 2d at 150-51. The court noted, “it is well established that an
       expert may testify about the findings and conclusions of a nontestifying expert that he used
       in forming his opinions.” Williams, 238 Ill. 2d at 143 (citing People v. Lovejoy, 235 Ill. 2d
       97, 143 (2009)). The court concluded that the report was not hearsay because it was not
       offered for the truth of the matter asserted, but was to demonstrate what was relied upon in
       forming the expert’s ultimate opinions.
¶ 74       Multiple divisions of the appellate court have previously held that testimony by a medical
       examiner regarding an autopsy report prepared by an individual who no longer works for the
       medical examiner’s office is not testimonial and does not implicate the confrontation clause.
       People v. Leach, 405 Ill. App. 3d 297 (2010)1; People v. Antonio, 404 Ill. App. 3d 391
       (2010); People v. Pitchford, 401 Ill. App. 3d 826 (2010); People v. Moore, 378 Ill. App. 3d
       41 (2007). We see no reason to depart from this precedent. Accordingly, we hold that the
       medical examiner’s testimony in the case at bar was properly admitted and defendant’s
       confrontation rights were not violated.
¶ 75       After this case was briefed and oral arguments were held, the United States Supreme
       Court decided Bullcoming v. New Mexico, 564 U.S. ___, 131 S. Ct. 2705 (2011). Defendant
       submitted a motion to cite this additional authority, which we granted. Bullcoming, however,
       does not change our analysis here. In Bullcoming, the defendant was found guilty of
       aggravated driving while under the influence of intoxicating liquor. Bullcoming, 564 U.S.
       at ___, 131 S. Ct. at 2709. On review, the Court, relying on Melendez-Diaz v. Massachusetts,
       557 U.S. ___, 129 S. Ct. 2527 (2009), found that a certified blood-alcohol concentration
       (BAC) report which was prepared “solely for an ‘evidentiary purpose’ ” and made in “aid of
       a police investigation” was testimonial. Bullcoming, 564 U.S. at ___, 131 S. Ct. at 2717
       (quoting Melendez-Diaz, 557 U.S. at ___, 129 S. Ct. at 2532). Therefore, its admission into
       evidence required either live testimony from the analyst who performed the test and certified
       the report, or a finding that the analyst who performed the test was unavailable and the
       defendant had a prior opportunity to cross-examine that analyst. Bullcoming, 564 U.S. at ___,
       131 S. Ct. at 2713. In Bullcoming, the “surrogate” testimony of another analyst who did not
       personally perform or observe the performance of the test was insufficient to satisfy the
       requirements of the confrontation clause. Bullcoming, 564 U.S. at ___, 131 S. Ct. at 2710.
¶ 76       The BAC report at issue in Bullcoming and the certificate of analysis at issue in
       Melendez-Diaz differ from the medical examiner’s report at issue in the instant case. The
       BAC report in Bullcoming was created to prove the particular fact that the defendant’s blood-
       alcohol content was above a certain limit. Bullcoming, 564 U.S. at ___, 131 S. Ct. at 2710.
       The certificate of analysis at issue in Melendez-Diaz was also created to prove a particular
       fact, as it pertained to the results of a forensic analysis showing that material seized by police
       and connected to the defendant was cocaine. Melendez-Diaz, 557 U.S. ___, 129 S. Ct. 2532.
       As this court has previously found, autopsy reports are neither created for an evidentiary
       purpose nor created in aid of a police investigation. Leach, 405 Ill. App. 3d at 307-08.


               1
               At the time of this opinion, People v. Leach, 405 Ill. App. 3d 297, appeal allowed, 239 Ill.
       2d 572 (2011) (Leach II), is pending before our supreme court.

                                                  -16-
       Bullcoming does not change our analysis regarding testimony by a medical examiner about
       an autopsy report prepared by an individual who no longer works for the medical examiner’s
       office.
¶ 77       Defendant is unable to show prejudice where, had appellate counsel raised this issue, his
       conviction would not have been reversed. Consequently, defendant fails to establish that his
       claim has an arguable basis in fact or law. The summary dismissal of defendant’s
       postconviction petition was proper.

¶ 78                                    III. Conclusion
¶ 79      For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 80      Affirmed.




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