                                                                           FIFTH DIVISION
                                                                           August 30, 2010


1-07-2757



THE PEOPLE OF THE STATE OF ILLINOIS,                        )       Appeal from the
                                                            )       Circuit Court of
                 Plaintiff-Appellee,                        )       Cook County.
                                                            )
       v.                                                   )       03 CR 646
                                                            )
ARMANDO ANTONIO,                                            )       The Honorable
                                                            )       Dennis A. Dernbach,
                 Defendant-Appellant.                       )       Judge Presiding.


       PRESIDING JUSTICE TOOMIN delivered the opinion of the court:

       Here, we revisit whether a defendant’s right of confrontation was abridged by a

pathologist’s testimony narrating the examinations and observations of nontestifying experts.

Following a jury trial, defendant, Armando Antonio, was convicted of involuntary manslaughter

and concealment of a homicidal death and subsequently sentenced to terms of 14 years’

imprisonment and 5 years’ imprisonment, respectively. Defendant now appeals contending: (1)

his right to confront witnesses was denied; and (2) he was prejudiced by the introduction of other

crimes evidence. For the reasons that follow, we affirm.

                                        BACKGROUND

       The charges against defendant stemmed from the disappearance of Elvia Torres-Bahena.

As defendant’s claims of error do not hinge upon the sufficiency of the evidence, we confine our

review of the facts to those necessary to convey an understanding of the cause and our resolution

of the appeal.
1-07-2757

       Elvia Torres-Bahena was last seen or heard from on June 28, 2002. At that time, she was

in the midst of attempting to bring her son to Chicago from Mexico. Beginning in May of 2002,

Elvia lived with defendant. According to Elvia’s mother, Antonia Bahena Martinez, defendant

had arranged to travel to Mexico on July 5, 2002, to accompany Elvia’s son, Marcos, back to

Chicago. This was planned despite the fact that the boy lacked a visa to enter the country.

Antonia last spoke with her daughter on June 28, 2002. Though the two of them spoke often,

Antonia did not hear from Elvia again after the conversation.

       In turn, Antonia contacted her sister-in-law, Maria Bahena, who lived in Houston. Maria

agreed to come to Chicago to report Elvia missing. She was accompanied by a police officer to

the apartment Elvia shared with defendant at 2711 South Tripp in Chicago. The police officer

entered the apartment through a window and allowed Maria inside the apartment. Maria

observed women’s shoes and clothing, luggage, and photographs of unknown individuals.

Thereafter, Maria filed a missing person’s report and returned to Texas.

       The manager of the building testified that he last saw Elvia when he went to collect rent

from defendant. Thereafter, he did not see defendant for about a month, when defendant

indicated he had left “the young lady” and that it was likely she was with another man.

       On August 12, 2002, defendant was interviewed by Detective Doreen Velasquez at his

workplace. Velasquez described defendant as “fidgety and nervous” during the conversation. He

was asked about the last time he saw Elvia. Defendant responded that they had ended their

relationship in June 2002, and he then went to Mexico for approximately one month in order to

visit his mother and his “real girlfriend.” Defendant theorized that because Elvia possessed keys


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to his apartment, she might have moved during his trip to Mexico.

        Defendant denied having arranged to accompany Elvia’s son to Chicago. He claimed it

was, in fact, a man from Minnesota who was involved in that plan. Furthermore, defendant

suggested, “[P]erhaps [the man from Minnesota] did something to [Elvia], too.” Several times

during the interview defendant indicated he was nervous about the possibility of deportation.

However, nothing defendant said raised Detective Velasquez’s suspicions and he was not

arrested at that time.

        Defendant was ultimately arrested on an unrelated traffic stop on December 9, 2002. He

was taken into custody by Detective Sam Dickerson of the fugitive apprehension unit. When

Dickerson conducted a custodial search of defendant, he recovered two money order receipts for

$700 and $800. They were made out to defendant and listed “Miss Torres” as the payor.

        Following his arrest by Detective Dickerson, defendant was interviewed on December 10,

2002, by Detective Maria Pena. Defendant maintained he last saw Elvia on June 28, 2002,

before he left for a vacation in Mexico. Upon his return, he discovered she was gone and he

discarded her remaining belongings. Defendant offered the possibility that Elvia fled the country

with the $5,000 he purportedly gave her to purchase a vehicle. Defendant denied speaking with

Elvia’s family or agreeing to pick up her son in Mexico. Moreover, defendant believed his

refusal to accompany Elvia’s son might have caused her to be angry with him. When asked

about the money orders, defendant claimed they were in payment of a debt owed to him by Elvia.

He did not explain the nature of the debt.

        Despite initially denying that he had access to a computer, a search of defendant’s living


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quarters uncovered a desktop computer. The following day defendant was confronted with this

discovery. Thereafter, he consented to a search of the computer.

       During a subsequent discussion, defendant told Pena he had not been truthful previously

and now wanted to tell her about Elvia. Defendant explained that, on or about June 26, 2002, he

and Elvia discussed traveling to Mexico to retrieve her son. The two of them drove to the border

between the United States and Mexico. On arriving at the border, they paid a “coyote” – a

person who could get people across the border illegally – $700 to get them into Mexico. The

coyote rode in the car with them. Along the way they were attacked, beaten, and robbed.

Defendant and Elvia agreed to return to the United States because they no longer had any money.

The only way to get back was to swim across a river. As they swam, the currents became “very

rough and high” and defendant lost Elvia. According to defendant, once he reached the shore he

walked to a nearby home and asked for dry clothes. He then hitchhiked to his parents’ home. He

spent a couple of days with his parents, went sightseeing, and then returned to Chicago. Upon

his return to Chicago, defendant threw Elvia’s possession in the garbage.

       Following this interview, Pena spoke with Detective Lerch concerning the contents of

defendant’s e-mails. Pena informed defendant the e-mails were not consistent with his version of

events. Specifically, one message, between Elvia and her friend, indicated she was happy and

excited about defendant going to Mexico to get her son. Elvia was looking forward to their

arrival in Chicago, which she anticipated to be some time in July. Following this confrontation,

defendant asked for a cigarette and again told Pena he would tell her the truth.

       Defendant described an argument with Elvia that started because defendant no longer


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wished to go to Mexico to bring her son back. The argument took place in the bedroom of the

apartment at 2711 South Tripp in Chicago. According to defendant, Elvia was insistent that he

go to Mexico. Defendant pushed her. Elvia fell and struck her head on a piece of furniture.

Defendant then called her name several times. When Elvia did not respond, he checked for a

pulse, but did not find one. He saw blood coming from Elvia’s nose. Defendant wiped the blood

away and then carried her to his van. Pena denied that defendant ever told her that what

happened was an accident.

       Defendant drove around for a while, knowing he had to discard the body. He parked in

the area of the 700 block of Kilbourn in Chicago. Defendant spent 20 to 40 minutes considering

his options. He decided to discard the Elvia’s corpse in the sewer. Upon realizing the body

would not fit in one piece, he resolved to cut it up. Using a knife he found in the back of his van,

defendant cut the body in half. He placed the parts in a plastic bag and disposed of them in the

sewer. Thereafter, he sold the van.

       Following his confession, defendant went with Pena and other detectives to the 700 block

of Kilbourn, where he pointed out the sewer he used. Several detectives removed the sewer cap

and located a clear plastic bag containing a torso without a head. The streets and sanitation

department was contacted to assist with the removal of the body. Defendant was returned to

Area 4 Headquarters, where he gave a videotaped statement. In the statement, defendant

inculpated himself, but nonetheless asserted that what happened to Elvia was an accident.

       Subsequent mitochondrial DNA analysis determined that Elvia could not be excluded as

the source of the DNA found in the femur and rib submitted for analysis. The DNA in those


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body parts was compared to that of her mother and son. The analysis determined the profile

present would occur in 1 out 119 unrelated Hispanics.

       After the State rested, defendant made several motions. The first was to dismiss the first

degree murder counts for failure to establish a corpus delicti. Defendant likewise moved for a

directed finding. Defendant’s motions were denied. Defendant called two witnesses, his former

roommate and his brother, as a part of the defense case. However, defendant did not testify.

       Following summations, the jury was instructed. Among the instructions was one on

involuntary manslaughter, as requested by defendant. The jury returned verdicts of guilty of

involuntary murder and concealment of a homicidal death. Defendant’s motion for a new trial

was denied. In turn, he was sentenced to consecutive terms of 14 years’ imprisonment for

involuntary manslaughter and 5 years’ imprisonment for concealment of a homicidal death. This

appeal followed.

                                            ANALYSIS

       Defendant first contends he was denied his right of confrontation where the testifying

medical examiner did not personally perform the postmortem examinations. Defendant contends

this evidence was inadmissible because it violated his sixth amendment right to confront

witnesses against him. In crafting his argument, defendant relies heavily upon Crawford v.

Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), and Melendez-Diaz v.

Massachusetts, ___ U.S. ___, 174 L. Ed. 2d 314, 129 S. Ct. 2527 (2009). The State counters that

this claim of error was forfeited and notes that defendant concedes it is being raised for the first

time on appeal. Consequently, both sides take the position that review of this issue must be


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based upon the plain-error doctrine.

       Supreme Court Rule 615(a), or the plain-error doctrine, delineates an exception

permitting review of issues otherwise subject to procedural default. People v. Lewis, 234 Ill. 2d

32, 42, 912 N.E.2d 1220, 1226-27 (2009); 134 Ill. 2d R. 615(a). Our supreme court described

the circumstances under which the doctrine is operative in People v. Piatkowski:

               “[T]he plain-error doctrine allows a reviewing court to consider unpreserved

       error 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 serousness 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, 870 N.E.2d 403, 411

       (2007), citing People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d 467, 479 (2005).



       Rule 615 specifically provides that, “Any error, defect, irregularity, or variance which

does not affect substantial rights shall be disregarded.” 134 Ill. 2d R. 615(a). “Essentially, the

fairness of the trial must be undermined.” People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901,

910 (1995). The burden of persuasion as to the two prongs falls upon those defendants seeking

the application of the doctrine. People v. Naylor, 229 Ill. 2d 584, 593, 893 N.E.2d 653, 659

(2008). Where a defendant cannot carry the burden, it is incumbent upon us to honor the

procedural default. Naylor, 229 Ill. 2d at 593, 893 N.E.2d at 659-60.


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       Manifestly, we must ascertain whether an error actually occurred. Lewis, 234 Ill. 2d at

43, 912 N.E.2d at 1227, citing People v. Walker, 232 Ill. 2d 113, 124, 902 N.E.2d 691, 697

(2009). Therefore, we consider the substance of defendant’s claim of error. Lewis, 234 Ill. 2d at

43, 912 N.E.2d at 1227.

       Dr. Nancy Jones of the Cook County medical examiner’s office testified to having

reviewed the entire case file, including the reports and examinations of the decomposed torso

conducted by Dr. Choi, Dr. Snow’s report of his examination of the skeletal remains, and

photographs taken during the stages of examination. Choi’s report described a partially

decomposed and partially dismembered human torso. X-ray examinations of the torso did not

reveal any foreign metallic objects or projectiles. Moreover, the internal organs had

decomposed. However, bones and parts of bones were identified. There were no other

indications of trauma to the body beyond the dismemberment. Based on his examination, Choi

was unable to determine a cause or manner of death.

       Following this examination, Choi contacted Snow, a forensic anthropologist, to examine

the skeletal remains. Snow’s report concluded the remains belonged to a female, between the

ages of 30 and 45, who was less than 5 feet 5 inches in height. The pubic bones exhibited

changes consistent with having had children. Snow found no evidence of antemortem injuries to

the bones. He concluded the body was dismembered using a hacksaw, handsaw, or another

similar manual device, as opposed to a power saw. Snow opined that the head was likely

removed in a similar manner, despite the absence of a skull or cerebral vertebrae for examination.

Snow was likewise unable to determine a cause of death.


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       Notably, defendant’s argument regarding Dr. Jones’s testimony gives only the most

cursory attention to the underlying issues concerning the confrontation clause, particularly insofar

as hearsay is concerned. Defendant’s very focused attention to the absence of an opportunity to

confront Drs. Choi and Snow makes an analytical leap of logic, while ignoring the logical

underpinnings and holdings contained in the body of precedent in this area. As the State aptly

notes, the analysis must necessarily consider hearsay, the nature of the testimony – whether it is

testimonial or nontestimonial – and the nature of the evidence forming the basis for the

testimony.

       The fundamental guarantee of the sixth amendment 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. The Illinois constitution likewise makes the same guarantee. Ill.

Const. 1970, art. I, §8. Critical to an understanding of the constitutional principle of

confrontation is an understanding of its interrelationship with hearsay. As the Supreme Court

explained in California v. Green:

       “While it may readily be conceded that hearsay rules and the Confrontation Clause

       are generally designed to protect similar values, it is quite a different thing to suggest

       that the overlap is complete and that the Confrontation Clause is nothing more or less

       than a codification of the rules of hearsay and their exceptions as they existed

       historically at common law.         Our decisions have never established such a

       congruence; indeed, we have more than once found a violation of confrontation

       values even though the statements in issue were admitted under an arguably


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       recognized hearsay exception. [Citation.] The converse is equally true: merely

       because evidence is admitted in violation of a long-established hearsay rule does not

       lead to the automatic conclusion that confrontation rights have been denied.”

       California v. Green, 399 U.S. 149, 155-56, 26 L. Ed. 2d 489, 495-96, 90 S. Ct. 1930,

       1933-34 (1970).

       As the Court noted in Ohio v. Roberts, a literal reading of the confrontation clause – i.e.

that all statements by declarants not present at trial would be excluded – would cause it to

“abrogate virtually every hearsay exception, a result long rejected as unintended and too

extreme.” Ohio v. Roberts, 448 U.S. 56, 63, 65 L. Ed. 2d 597, 606, 100 S. Ct. 2531, 2537

(1980). Additionally, when referring back to Green, the Roberts Court observed: “The historical

evidence leaves little doubt, however, that the Clause was intended to exclude some hearsay.”

Roberts, 448 U.S. at 63, 65 L. Ed. 2d at 606, 100 S. Ct. at 2537. Moreover, the Court recognized

an historical “preference for face-to-face confrontation at trial” and the importance of cross-

examination. Roberts, 448 U.S. at 63, 65 L. Ed. 2d at 606, 100 S. Ct. at 2537. Yet, the Court left

open the possibility of fluidity in the development of the rules across jurisdictions:

               “The Court, however, has recognized that competing interests, if ‘closely

       examined,’ Chambers v. Mississippi, 410 U.S. [284,] 295 [(1973)], may warrant

       dispensing with confrontation at trial. See Mattox v. United States, 156 U.S. [237,]

       243 [(1895)] (‘general rules of law of this kind, however beneficent in their

       operation and valuable to the accused, must occasionally give way to considerations

       of public policy and the necessities of the case’). Significantly, every jurisdiction has


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        a strong interest in effective law enforcement, and in the development and precise

        formulation of the rules of evidence applicable in criminal proceedings.” Roberts,

        448 U.S. at 64, 65 L. Ed. 2d at 606-07, 100 S. Ct. at 2538.

        Next, in White v. Illinois, 502 U.S. 346, 116 L. Ed. 2d 848, 112 S. Ct. 736 (1992), the

Court noted the traditional approach to the interplay of hearsay and confrontation: “Nonetheless,

we have consistently sought to ‘stee[r] a middle course,’ [citation], that recognizes that ‘hearsay

rules and the Confrontation Clause are generally designed to protect similar values,’ [citation],

and ‘stem from the same roots,’ [citation].” White v. Illinois, 502 U.S. 346, 352-53, 116 L. Ed.

2d 848, 857, 112 S. Ct. 736, 741 (1992).

        In Crawford, the United States Supreme Court held that insofar as testimonial evidence is

concerned, this constitutional safeguard “demands what the common law required: unavailability

and a prior opportunity for cross-examination.” Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203,

124 S. Ct. at 1374. Importantly, the confrontation clause “commands, not that evidence be

reliable, but that reliability be assessed in a particular manner: by testing in the crucible of

cross-examination.” Crawford, 541 U.S. at 61, 158 L. Ed. 2d at 199, 124 S. Ct. at 1370.

        While Crawford distinguished testimonial and nontestimonial hearsay, the decision did

not attempt to comprehensively define what constituted testimonial hearsay. Nevertheless, the

Court cautioned that “[w]hatever 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.”

Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. According to the Court,

these were “the modern practices with closest kinship to the abuses at which the Confrontation


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Clause was directed.” Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374.

“Conversely, where nontestimonial hearsay is at issue, the Court held that ‘it is wholly consistent

with the Framers’ design to afford the States flexibility in their development of hearsay law ***

as would an approach that exempted such statements from Confrontation Clause scrutiny.’ ”

People v. Leach, 391 Ill. App. 3d 161, 169, 908 N.E.2d 120, 128 (2009), quoting Crawford, 541

U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. Significantly, business records and

statements in furtherance of a conspiracy, which the Court acknowledged as historically

nontestimonial, fell within that exempted class of statements. Crawford, 541 U.S. at 56, 158 L.

Ed. 2d at 195-96, 124 S. Ct. at 1367.

       Against this background, we must determine, then, whether the reports prepared by Drs.

Choi and Snow qualify as business records. Our resolution of this question is informed by the

legislative guidepost of section 115-5.1 of the Code of Criminal Procedure of 1963, which

provides:

               “In any civil or criminal action the records of the coroner’s medical or

       laboratory examiner summarizing and detailing the performance of his or her official

       duties in performing medical examinations upon deceased persons or autopsies, or

       both, and kept in the ordinary course of business of the coroner’s office, duly

       certified by the county coroner or chief supervisory coroner’s pathologist or medical

       examiner, shall be received as competent evidence in any court of this State, to the

       extent permitted by this Section. These reports, specifically including but not limited

       to the pathologist’s protocol, autopsy reports and toxicological reports, shall be


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       public documents and thereby may be admissible as prima facie evidence of the facts,

       findings, opinions, diagnoses and conditions stated therein.

               A duly certified coroner’s protocol or autopsy report, or both, complying with

       the requirements of this Section 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. The records referred to in this Section shall be limited to the records of the

       results of post-mortem examinations of the findings of autopsy and toxicological

       laboratory examinations.” (Emphasis added.) 725 ILCS 5/115-5.1 (West 2006).

The plain language of this section is persuasive and convinces us of the correctness of

characterizing the reports of postmortem examinations as business records. Established

precedent further galvanizes our resolve in this conclusion. See People v. Moore, 378 Ill. App.

3d 41, 50, 800 N.E.2d 229, 237 (2007) (autopsy report is a business record); Fatigato v. Village

of Olympia Fields, 281 Ill. App. 3d 347, 358, 666 N.E.2d 732, 740 (1996) (toxicology report

considered business record by Supreme Court Rule 236(a) (134 Ill. 2d R. 236(a))).

       In Moore, the medical examiner who performed the autopsy retired prior to trial and was

unavailable to testify. A second medical examiner testified to the contents of the report and the

opinions expressed therein. The testifying medical examiner also indicated his agreement with

the conclusions and opinions expressed in the report, that the victim died as a result of blunt

force trauma. Moore, 378 Ill. App. 3d at 44, 800 N.E.2d at 232. Our second division concluded

the presentation of this testimony did not deny the defendant his sixth amendment rights to

confrontation. The court was persuaded that the records at issue were public records or business


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records and did not implicate Crawford by their introduction. Moore, 378 Ill. App. 3d at 50-51,

800 N.E.2d at 237. The Moore court relied, in part, on Fatigato v. Village of Olympia Fields,

which noted that a toxicology report was a business record by virtue of Supreme Court Rule

236(a). Fatigato, 281 Ill. App. 3d at 358, 666 N.E.2d at 740.

       We recently arrived at a similar conclusion in Leach. There, the defendant was charged

with the first degree murder of his wife. The autopsy in Leach was, like the case sub judice,

performed by Dr. Choi, who retired prior to trial. Leach, 391 Ill. App. 3d at 167, 908 N.E.2d at

125-26. In reliance upon the autopsy report and materials reviewed by Dr. Choi, the testifying

medical examiner opined that the victim died as a result of strangulation and her death was a

homicide. Leach, 391 Ill. App. 3d at 167, 908 N.E.2d at 126. In rejecting defendant’s

confrontation clause claim, we observed, “An unbroken line of precedent instructs that business

records have been uniformly regarded as an exception to the hearsay rule.” Leach, 391 Ill. App.

3d at 169, 908 N.E.2d at 128. We likewise construed the provision of section 115-5.1 as a

codification of the common law exception to hearsay for this category of business records.

Leach, 391 Ill. App. 3d at 170-71, 908 N.E.2d at 128-29.

       Furthermore, we are unpersuaded by defendant’s claim that the Melendez-Diaz opinion

“implicitly overruled” our decisions in Leach and Moore. Accord People v. Cortez, No.

1-07-3245 (June 22, 2010), citing Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 321-22, 129

S. Ct. at 2532. Importantly, Melendez-Diaz involved a factually inapposite situation to the one

presented in the case sub judice. In that case, the defendant’s trial included the presentation of

three “ ‘certificates of analysis’ ” from forensic analysts who tested the substance found in the


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defendant’s possession. These certificates indicated the substance tested was cocaine.

Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 320, 129 S. Ct. at 2530-31. The Court

concluded these documents fell within the “ ‘core class of testimonial statements’ ” addressed by

the confrontation clause where they were “quite plainly affidavits.” Melendez-Diaz, 557 U.S. at

___, 174 L. Ed. 2d at 321, 129 S. Ct. at 2532, quoting Crawford, 541 U.S. at 51, 158 L. Ed. 2d at

193, 124 S. Ct. at 1354. According to the Court:

       “They are incontrovertibly a ‘ “solemn declaration or affirmation made for the

       purpose of establishing or proving some fact.” ’ [Citation.] The fact in question is

       that the substance found in the possession of [the defendant] and his codefendants

       was, as the prosecution claimed, cocaine – the precise testimony the analysts

       would be expected to provide if called at trial.” Melendez-Diaz, 557 U.S. at ___,

       174 L. Ed. 2d at 321, 129 S. Ct. at 2532.

       Therefore, the preparers of the certificates were, indeed, witnesses against the defendant

and thus subject to confrontation, unless they were unavailable and previously subjected to cross-

examination. Melendez-Diaz, 557 U.S. at ___, 174 L. Ed. 2d at 321-22, 129 S. Ct. at 2532.

Unlike the situation in Melendez-Diaz, the reports of Drs. Choi and Snow did not prove any fact

in question. As noted, neither doctor came to any conclusion relative to an element of the

offense charged against defendant. While it is arguable certain of Dr. Snow’s estimations could

provide support for certain inferences as to the identity of the decedent, he offered no opinion as

to any particular fact or element of the offense charged. Characterizing Drs. Choi and Snow as

witnesses against defendant would extend the rationale of Melendez-Diaz to a degree not


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previously contemplated.

          We reached the same conclusion in People v. Pitchford, where the defendant made a

similar challenge to the testimony of a medical examiner who did not perform the postmortem

examination, but, instead, relied upon reports of another physician. People v. Pitchford, No. 1-

07-2697 (June 1, 2010). In dispensing with the defendant’s argument, our second division

stated:

          “The defendant has failed to make any rational argument regarding what advantage

          he would have gained by cross-examining the physician who performed the autopsies

          and prepared the reports. The medical examiner who did testify was merely relating

          the results of the autopsies as written in the autopsy reports. *** An autopsy report

          is significantly different from a lab report of the type at issue in Melendez-Diaz. The

          inapplicability of Melendez-Diaz to the facts of the case is clear. The main focus of

          the testimony regarding the autopsy reports in this case dealt with the manner of

          death; specifically, establishing the fact that the victims were shot to death. At no

          time in the trial was the manner of death in dispute. The defendant’s argument on

          this issue, taken to its logical conclusion, would yield absurd results. In any event,

          the defendant has utterly failed to show any resulting prejudice from the assistant

          medical examiner’s testimony regarding the autopsy report.” Pitchford, slip op. at

          13-14.

          An identical result obtained in Cortez, where our second division rejected the same

argument and emphasized the position that Melendez-Diaz does not serve to “upset” the holdings


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announced in Leach and Moore. Cortez, slip op. at 10. In Cortez, an autopsy report was

admitted, without production of the author, over objection by the defense. Cortez, slip op. at 11.

While acknowledging the import of the holding in Melendez-Diaz, the Cortez court noted the

factual dissimilarity between the case at issue there and Melendez-Diaz, making Crawford

inapplicable. Cortez, slip op. at 10. Instead, the court reiterated the principle reflected in prior

case law, concluding that “autopsy reports are business records and do not implicate Crawford.”

Cortez, slip op. at 10.

        Based on the conclusion that the autopsy report was a business record and in view of the

relevant body of precedent, we are convinced Crawford is not implicated in the present case.

Consequently, we conclude the introduction of the reports of Drs. Choi and Snow through the

testimony of Dr. Jones was not violative of defendant’s right to confront witnesses against him.

See Moore, 378 Ill. App. 3d at 51, 800 N.E.2d at 237. Notably, the substance of Dr. Jones’s

testimony was directed to what could best be characterized as a summary of the reports of the

other examiners.

        Moreover, insofar as the substance of Dr. Choi’s report is concerned, no conclusion was

drawn as to the cause and manner of death of the victim, as they were “undetermined.”

Likewise, Snow’s report was a generalized review of the skeletal remains providing estimations

of age and stature. Neither of the reports went to the identity of the victim per se. Instead, the

information contributing to the identity of the victim and the circumstances of her demise came

from other sources, not the least of which was defendant’s statement and revelation of the

location of her remains. All of this is to say that, in a practical sense, there was little or nothing


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to confront or disprove in the reports of Drs. Choi and Snow. Testimony like that presented by

Dr. Jones possesses no such kinship. Moreover, we are unable to ascertain any means or

measure by which Dr. Jones’s testimony was harmful to defendant. Keeping in mind the jury’s

conclusion as against the charges against him, it is clear the jury accepted his theory of what

happened. Nevertheless, there was no error and further examination of plain-error considerations

is not warranted.

       Next, defendant challenges the admission of other crimes evidence offered by Maria

Chavez, defendant’s former spouse. The evidence complained of regarded an incident wherein

the defendant threatened her life, while armed with a gun. The State responds that defendant

forfeited this argument because the record is insufficient for this court to consider the arguments

made on the pretrial motions in limine and the argument does not adequately cite to the record to

support his contentions. Before engaging the machinations involved in procedural default

analysis, we will first determine whether an error occurred. See Lewis, 234 Ill. 2d at 43, 912

N.E.2d at 1227, citing Walker, 232 Ill. 2d at 124-25, 902 N.E.2d at 697.

       As the State notes in its brief, the matter of the introduction of other crimes evidence was

the subject of a motion in limine. The trial court’s ruling permitted the State to introduce this

vein of evidence. Following a cautionary instruction, the jury heard testimony from defendant’s

former spouse, Maria Guadalupe Chavez. According to Chavez, she and defendant divorced in

April of 1999. She described their union as a “bad marriage.” Then, in June, 1999, defendant

visited Chavez’s apartment and threatened her with a gun. Defendant pointed the gun at Chavez

and told her he was going to kill her. Defendant further stated that he would hide Chavez’s car in


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the garage where her family would neither see the car nor find her.

       Decisions concerning the admissibility of evidence are left solely to the trial court acting

in its discretion. People v. Harris, 231 Ill. 2d 582, 588, 901 N.E.2d 367, 370 (2008). As a

reviewing court, we will not reverse an such evidentiary determinations unless there record

“clearly demonstrates” discretion was abused. Harris, 231 Ill. 2d at 588, 901 N.E.2d at 370.

       Manifestly, evidence of other crimes committed by a defendant is not admissible if its

relevancy is limited merely to establishing a propensity to commit crime. People v. Kliner, 185

Ill. 2d 81, 146, 705 N.E.2d 850, 883 (1998). Nevertheless, admission of such evidence may be

permitted “where relevant to prove any material question other than the defendant’s propensity

to commit crime, including modus operandi, intent, identity, motive, or absence of mistake.”

Kliner, 185 Ill. 2d at 146, 705 N.E.2d at 883. In considering admission, it is incumbent upon the

trial judge to weigh the probative value of the proposed evidence as against the danger of

prejudice to the defendant. People v. Illgen, 145 Ill. 2d 353, 365, 583 N.E.2d 515, 519 (1991).

We review this claim of error under the abuse of discretion standard. Kliner, 185 Ill. 2d at 146,

705 N.E.2d at 883.

       Our review of the evidence presented at trial gives credence to the relevance of this

evidence. The similarity between defendant’s confession and the threat made to his ex-wife is

unmistakable. That the prior threat involved a gun does not alter our perception. Importantly,

the similarity in the two accounts is not indicative of propensity evidence. Instead, it could

comfortably fit within the context of intent, modus operandi, or absence of mistake. See Kliner,

185 Ill. 2d at 146, 705 N.E.2d at 883. Among these, the concept of modus operandi strikes a


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particularly resonant chord. As our second division discussed in People v. Jackson, when

evaluating a jury instruction:

       “Defendant’s instruction defined modus operandi as ‘a pattern of behavior so distinct

       that separate acts or conduct are recognized as the work of the same person.’ We

       note that modus operandi is generally defined in this fashion in Illinois cases.”

       People v. Jackson, 331 Ill. App. 3d 279, 291-92, 771 N.E.2d 982, 993 (2002).

This definition provides a sound basis for the admissibility of this evidence.

       Chavez’s testimony, coupled with defendant’s admission that he got angry with Elvia and

responded by pushing her, illustrates his manner of handling stressful or upsetting situations.

Likewise, this evidence could capably demonstrate an absence of mistake on his part. Given the

jury’s verdict, the use of this evidence to demonstrate intent is less clear. Nevertheless, given the

various alternate uses for this evidence, other than to establish propensity, we cannot conclude

the trial court abused its discretion by admitting Chavez’s testimony.

       As we conclude there was no abuse of discretion, defendant’s claim of error is without

merit. We, therefore, need not consider whether the plain-error doctrine would permit defendant

to overcome the procedural default of his claim.

       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

       Affirmed.

       FITZGERALD SMITH and HOWSE, JJ., concur.




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             1-07-2757

                                     REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT
Please Use
Following                                      (Front Sheet to be Attached to Each Case)
Form:
                            THE PEOPLE OF THE STATE OF ILLINOIS,
Comple te
TITLE
                                                 Plaintiff-Appellee,
of Case
                            v.

                            ARMANDO ANTONIO,
                                                            Defendant-Appellant.




Docket No.
                                                                     No. 1-07-2757
COURT                                                          Appellate Court of Illinois
                                                             First District, FIFTH Division

Opinion                                                            August 30, 2010
Filed                                                         (Give month, day and year)


                                   PRESIDING JUSTICE TOOMIN delivered the opinion of the court:
JUSTICES
                                   FITZGERALD SMITH and HOWSE, JJ.                                                 concur [s]

                                                                                                          dissent[s]



APPEAL from                                   Lower Court and T rial Judge(s) in form indicated in the margin:
the Circuit Ct. of
Cook County,
Chancery Div.                                      The Honorable     Dennis Dernbach, Judge P residing.




                                         Indicate if attorney represents APPELLANTS or APPELLEE S and include
For                                           attorneys of counsel. Indicate the word NONE if not represented.
APPELLANTS,
John Doe, of    Attorneys for Plaintiff-Appellee-People of the State of Illinois: Anita Alvarez
Chicago.                                                                          State’s Attorney
                                                                                  County of Cook
For
APPELLEES,                                                                        Room 309-Richard J. Daley Center,
Smith and Smith                                                                   Chicago, IL 60602
of Chicago,           Of counsel: Alan Spellberg, Mary Boland
Joseph Brown,
(of Counsel)
                     Attorneys for Defendant-Appellant-Armando Antonio:                Abishi C. Cunningham, Jr.
Also add                                                                               Gwyndolette Brown
attorneys for                                                                          69 West Washington, 15th floor
third-party                                                                            Chicago, IL 60602
appellants or
appellees.




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