                                                                               FIRST DIVISION
                                                                               June 25, 2007




No.1-05-0668

THE PEOPLE OF THE STATE OF ILLINOIS,                            )   Appeal from
                                                                )   the Circuit Court
       Plaintiff-Appellee,                                      )   of Cook County
                                                                )
               v.                                               )   No. 02 CR 22565
                                                                )
ROMELLE JONES,                                                  )   Honorable
                                                                )   John J. Moran, Jr.,
       Defendant-Appellant.                                     )   Judge Presiding.



       JUSTICE CAHILL delivered the opinion of the court:

       Defendant Romelle Jones was convicted of first-degree murder and attempted first-degree

murder (720 ILCS 5/9-1(a)(1) (West 2006)) after a jury trial. He was sentenced to 30 years in

prison for first-degree murder and 10 consecutive years for attempted first-degree murder. The

trial court added 20 years to defendant's sentence for discharging a firearm during the

commission of the offense (730 ILCS 5/5-8-1(a)(1)(d)(ii) (2006)). Defendant appeals, claiming

the trial court erred in: (1) denying his motion to quash his arrest and suppress his confession

where the police lacked probable cause to arrest him after smelling gunshot residue on his

person; (2) failing to require the State to give race-neutral reasons for striking a prospective juror

in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986); and (3)

admitting a forensic scientist’s opinion on the results of a gunshot residue test when the scientist
1-05-0668


was not present at the trial. We affirm.

       Defendant was convicted of the murder of Tyrone Perkins and the attempted murder of

Roscoe Robertson. The incident occurred at about 10 p.m. on August 1, 2002. Perkins died of a

gunshot wound to his head. Robertson suffered a graze wound to his arm. Both Perkins and

Robertson were members of the Gangster Disciples street gang. Defendant admitted he was a

member of the Black Disciples street gang.

       Before trial, defendant filed motions to quash his arrest and suppress evidence, including

the results of a lineup and his videotaped confession. Defendant argued that the police lacked

probable cause to arrest him and the evidence was inadmissible as the fruit of an illegal arrest.

The following evidence was presented at hearings on the motions.

       Detective Anthony Powell testified that on August 1, 2002, he and his partner Janet

Scanlon monitored a call on their police radio, reporting a shooting in the 5700 block of South

Carpenter. They heard descriptions of the shooters, first over the radio and then from officers at

the scene. The description was of two African-American males, one taller than the other, both

dressed in dark clothing. Powell said when they arrived at 5757 South Carpenter, they found a

young man with an apparent gunshot wound to his head. Powell said other police officers were

at the scene when he arrived.

       Detective Scanlon testified that she went to the scene after hearing a call over the police

radio. When she arrived, she spoke with police officers and civilian witnesses. Scanlon said she

talked to Robertson, who described the offenders as two black males, both wearing dark clothing.

She said Robertson told her one man might be wearing a purple T-shirt and one man was shorter

                                                 2
1-05-0668


and had a lighter complexion than the other. Scanlon admitted on cross-examination that she

interviewed Robertson at the Area One police station, not at the scene. On redirect examination,

Scanlon said the descriptions given over the police radio were of two males in dark clothing,

running south on Carpenter.

       Officer James Shackleton testified that he and his partner, Officer Ryan Fields, were on

patrol on the night of August 1, 2002. Between 10 and 10:10 p.m., they received a radio report

of a shooting at 57th and Carpenter. The officers heard that two African-American males were

the suspected shooters. Both officers knew of a “gang war” in the 5700 to 5900 blocks of

Carpenter and that someone had been shot in the vicinity the day before. When Shackleton and

Fields arrived at 6000 South Carpenter, other police officers were already on the scene.

Shackleton said he arrested defendant within five minutes of seeing him. He said defendant was

wearing black shorts and black gym shoes but no shirt. Shackleton admitted that, in a

supplementary report written about three weeks after the incident, he had stated that defendant

was wearing black pants and a white shirt. Shackleton testified that he heard several descriptions

of the shooter on the police radio, including "male black, black shorts, black shirt, male black,

black pants, black shirt, dark clothing." Shackleton said he heard that the shooters' direction of

flight was southbound. He said he had a conversation "for a few seconds" with people who were

at 57th and Carpenter. Shackleton said he received descriptions over the police radio and from

people at the scene.

       On cross-examination, Shackleton said he arrived within minutes of the call on the radio

and found numerous people gathered around the victim. He said his priority when he arrived was

                                                 3
1-05-0668


to look for the shooters because they had left the area just minutes before his arrival. He said the

descriptions he received from the witnesses, who chose to remain anonymous, were of two

African-American males wearing all black clothing who had run southbound on Carpenter.

Shackleton testified that he was aware of a gang war between the Black Disciples and the

Gangster Disciples, and that a person known as "Butter" had been shot in that area the day

before. He said there was a makeshift "grave" or memorial dedicated to Butter, a member of the

Black Disciples. He said several people were gathered around the "grave" when he arrived and

one was defendant. Shackleton said that when he first saw defendant, defendant was running,

appeared to be sweating profusely and was breathing heavily. Shackleton admitted it was a hot

night. Shackleton said he and his partner approached defendant to question him. He said the

information in the supplementary police report that defendant was wearing a white shirt was

incorrect.

       Shackleton testified that when he first approached defendant, he noticed an odor that he

believed to be gunshot residue. Shackleton testified that he attended the police academy, had

been in the presence of people who had recently fired a gun and had himself fired a gun after

which he noticed the odor of gunshot residue on his person. He said he believed the odor

emanating from defendant to be gunshot residue based on his experience and knowledge. He

said defendant matched the description of the offenders: "A few individuals told us that they both

had low haircuts, no facial hair or very little, and black shorts, black shoes and they fled

southbound running on foot." He said he and his partner handcuffed defendant to immobilize

his hands so he would not wipe off the residue.

                                                  4
1-05-0668


       On redirect examination Shackleton testified that he stopped defendant about 15 minutes

after the shooting about three blocks from the scene. He admitted he did not mention gunshot

residue in his supplementary report but instead referred to a "suspicious smelling residue on

[defendant's] hands."

       Shackleton testified that when he first saw defendant, defendant was running. Defendant

then stopped at the memorial. The officers then "activated the vehicle" and told defendant to

come over to talk to them. Shackleton said "[t]hen [defendant] was sweating profusely." He said

defendant came over to where the police were standing.

       The trial court denied defendant's motion to quash his arrest. The judge stated that he

considered the totality of the facts and evidence and found the State's witnesses to be "credible

and straightforward." He found that the information possessed by the police at the time

defendant was spotted was legally sufficient to justify a Terry stop. See Terry v. Ohio, 392 U.S.

1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). The judge said, "When [the officers] got within close

proximity of the defendant, based on this officer's familiarity with the odor of gunshot residue,

that in his judgment he smelled on that person of [defendant]."

       The court then heard defendant's motion to suppress the lineup evidence. Scanlon

testified that defendant appeared in a five-man lineup viewed by Robertson. She said Robertson

identified defendant "immediately." The trial court found that the lineup was not constitutionally

impermissible.

       The trial court held a separate hearing on defendant’s motion to suppress his statement.

In addition to reiterating some of his earlier testimony, Powell testified that he spoke with

                                                 5
1-05-0668


defendant in an interview room at Area One at about 1:10 a.m. on August 2, 2002. Powell said

he advised defendant of his rights under Miranda. Powell said he then had a 10-minute

conversation with defendant about procedures. Defendant was still shirtless. Powell said he

returned to the interview room at 1 p.m. in the afternoon of August 2, 2002. He said defendant

asked for a shirt and Powell obtained one for him at a thrift store. Powell said he provided

defendant with food. Powell and Scanlon spoke to defendant at about 10 p.m. that evening.

They advised him of his rights and defendant said he understood. They told defendant that he

had been identified in the lineup. Defendant then made an admission that lasted about 45

minutes. At 12:45 a.m. on August 3, 2002, an assistant State's Attorney arrived and spoke with

defendant. Defendant was again advised of his rights under Miranda. He made a 40- to 45-

minute statement to the assistant State's Attorney. Powell said defendant did not ask to speak to

a lawyer. Powell denied that he struck defendant or knew that others struck defendant or heard

that defendant claimed to have been beaten or threatened.

       Detective Scanlon testified to the same essential facts as Powell. She said she was

present when defendant chose to give a videotaped statement and when he signed a consent to

videotape his statement.

       The trial judge denied defendant's motion to suppress his statement, finding the officers'

testimony to be credible. The judge found defendant's demeanor in the videotaped statement to

be "inconsistent with a coerced statement."

       On January 25, 2005, jury selection began for defendant’s trial. Rose Taylor, an African-

American, was questioned by the court as a prospective juror. Taylor testified that she had

                                                6
1-05-0668


worked for 20 years as a records clerk at a law firm engaged in civil work. She said her husband

was a retired minister. She said her adult daughter was a housewife. She testified that in her free

time, she liked to read spiritual books and literature. She said she was not knowledgeable about

handguns and had no opinions about them that would prevent her from being fair. She said

evidence that defendant was a gang member would not prevent her from being fair. She said if

defendant decided not to testify she would not hold it against him. She said she could objectively

evaluate the testimony of police officers and could be fair to both sides.

       In the first round of peremptory challenges, the prosecutors excused two of four

venirepersons, including Taylor. Defendant did not object. Defendant then provided three more

venirepersons of whom two African-Americans, Vernon Dandridge and Darryl Vurrell, were

struck by peremptory challenges of the State. Defendant made a Batson challenge after these

strikes, contending there was “no reason” to have excluded the three African-American jurors,

including Taylor. The trial court denied that challenge, finding no pattern of discrimination.

Defendant provided four more venirepersons. The prosecutor struck an African-American,

Randall Douge. Defendant renewed his Batson challenge. The trial court found a prima facie

case of discrimination and directed the prosecutor to respond. The prosecutor offered race-

neutral explanations for striking Douge, Vurrell and Dandridge. Neither the trial court nor

defense counsel asked the State for a race-neutral reason for striking Taylor. Defendant did not

object when no race-neutral reason was given for striking Taylor. The trial court denied

defendant’s Batson motion and jury selection continued without further challenges.

       At trial, witnesses for the State were Detectives Powell and Scanlon, Officers Fields and

                                                 7
1-05-0668


Glenn Walton and Assistant State’s Attorney Kim Ward. Their testimony was consistent with

the testimony given in the pretrial hearings. Robertson testified, admitting that he had been

convicted of felonies related to narcotics and was a member of the Gangster Disciples.

       Angela Horn, who was qualified as a forensic scientist, testified that her examination of

the cartridge cases at the scene supported the conclusion that all of the cartridges were fired from

two guns. Courtney Melendez, a forensic scientist in the area of latent fingerprints, testified that

the cartridges found at the scene were not suitable for comparison with latent prints.

       Scott Rochowicz, a forensic scientist and qualified expert witness, testified that he had

reviewed the results of a gunshot residue test conducted by forensic scientist Mary Wong, who

was on maternity leave. Rochowicz described Wong’s procedures and opined that based on

Wong’s testing, defendant either had discharged a firearm, handled an item that was

contaminated with gunshot residue or was in close proximity of a firearm when it was

discharged.

       Defendant called Bernard Franklin, who testified that he saw defendant in front of

Franklin’s house at 6008 South Carpenter Avenue about 15 to 30 seconds before the shooting.

Franklin said he saw defendant walking back and forth between the memorial to Butter and the

home of a girl at 59th and Carpenter. He said defendant was drinking and was not wearing a

shirt. Franklin admitted that he could not see the girl’s house from where he stood.

       Defendant testified in his own defense. He said on the night of the shooting, he was in

the vicinity of 60th and Carpenter. He said he made trips back and forth between the memorial

and the home of his girlfriend, Renatta. He said he was in front of Renatta’s house when he

                                                 8
1-05-0668


heard gunshots. He said he did not know where the shots were being fired. Defendant denied

having a gun with him that night or shooting anyone. He testified that he told the detectives what

they wanted him to say. He said most of the information in his videotaped confession was what

Powell told him to say. He said he never fired a gun that night.

       The jury convicted defendant of first-degree murder and attempted first-degree murder

and found that he had discharged a firearm in committing first-degree murder. The court

sentenced defendant to 30 years in prison for first-degree murder and 10 years for attempted first-

degree murder, to be served consecutively. The court added 20 years to his sentence for

discharging a firearm during the commission of the offense. See 730 ILCS 5/5-8-1(a)(1)(d)(ii)

(West 2006).

       On February 18, 2005, defendant presented a motion for a new trial, arguing, among other

things, that the trial court erred in denying his motions to quash arrest and suppress evidence and

in denying his Batson challenge. The trial court denied the motion for a new trial. On June 7,

2005, defendant filed this appeal.

       Defendant first claims that the trial court erred by denying his motions to quash his arrest

and suppress the evidence against him. He argues that his behavior at the time of his arrest was

not suspicious. He claims that when the police stopped him, he was not hiding from the police

but was approaching uniformed officers. He claims that because the police officers lacked

probable cause to arrest him, the evidence they obtained after the arrest should be suppressed as

the “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 484-85, 9 L. Ed.

2d 441, 453-54, 83 S. Ct. 407, 415-16 (1963).

                                                 9
1-05-0668


       The State contends that the arresting officers had reasonable suspicion to stop and

probable cause to arrest defendant.

       In reviewing a trial court’s ruling on motions to quash arrest or suppress evidence, the

appellate court defers to the court’s factual findings unless they are against the manifest weight of

the evidence. People v. Sorenson, 196 Ill. 2d 425, 430-31, 752 N.E.2d 1078 (2001). The

deferential standard of review is appropriate because the circuit court is best able to determine

issues of fact and credibility. Sorenson, 196 Ill. 2d at 430-31. Where a motion to quash arrest or

suppress evidence turns on a legal question of reasonable suspicion or probable cause, we apply

de novo review. Sorenson, 196 Ill. 2d at 431. Using these standards together, we give great

deference to the circuit court’s findings of fact, but we review the legal questions of probable

cause and the suppression of evidence de novo. Sorenson, 196 Ill. 2d at 431.

       Defendant claims he was improperly stopped and arrested by the police. The fourth

amendment to the United States Constitution prohibits unreasonable searches and seizures. U.S.

Const., amend. IV. When an officer observes “possibly criminal behavior,” the officer may make

an investigatory stop without probable cause and may make “reasonable inquiries” to confirm or

dispel his suspicions. Terry v. Ohio, 392 U.S. 1, 22, 30, 20 L. Ed. 2d 889, 907, 911, 88 S. Ct.

1868, 1880, 1884 (1968). A police officer must have a reasonable and articulable suspicion to

make an investigatory “Terry stop.” People v. Ertl, 292 Ill. App. 3d 863, 868, 686 N.E.2d 738

(1997). Officers must “point to specific, articulable facts which, when taken together with

natural inferences, make the [officers’] intrusion [on the defendant] reasonable.” Ertl, 292 Ill.

App. 3d at 868. Because police officers often have to make quick judgments, the reasonableness

                                                 10
1-05-0668


of police officers' conduct must be “judged on the basis of their responsibility to prevent crime

and catch criminals.” People v. Stout, 106 Ill. 2d 77, 86-87, 477 N.E.2d 498 (1985).

"Reasonableness is measured in objective terms by examining the totality of the circumstances.”

People v. Moss, 217 Ill. 2d 511, 518, 842 N.E.2d 699 (2005).

       Here, the officers had a reasonable, articulable suspicion to justify a stop. After arriving

at the scene of the shooting, the arresting officers spoke personally with several witnesses who

described the suspects as African-American males with short haircuts, no or very little facial hair,

wearing black clothing and running southbound from 57th and Carpenter. This was consistent

with the descriptions officers heard over the police radio. The officers saw defendant, who

matched the description given by the witnesses. He was running southbound a few blocks from

the scene of the shooting, a few minutes after the crime occurred. The officers knew of a gang

war in that immediate area. These circumstances when considered together gave the officers

reasonable suspicion to justify stopping defendant.

       Defendant argues that he should not have been stopped because the descriptions over the

radio came from an unidentified source. It is well established that the reliability of an informant

is only one factor among many in a totality-of-circumstances analysis. People v. Adams, 131 Ill.

2d 387, 397, 546 N.E.2d 561 (1989). Here, the apprehension of defendant was not based solely

on the information reported over the police radio. Defendant matched the descriptions given to

Shackleton by witnesses near the scene. The fact that the source of the call over the police radio

was not disclosed does not preclude a finding that the police had proper grounds to stop

defendant.

                                                11
1-05-0668


       Defendant argues against this conclusion, characterizing the descriptions the officers

received from anonymous witnesses as vague and uncorroborated. In general, the reliability of

an ordinary citizen, unlike an informant, need not be established. People v. Williams, 305 Ill.

App. 3d 517, 524, 712 N.E.2d 883 (1999). Absent indications to the contrary, information

provided by an ordinary citizen is presumed to be reliable. Williams, 305 Ill. App. 3d at 524.

Here, although the witnesses did not provide their names, the officers were able to observe them

and assess their credibility. The witnesses' descriptions were sufficiently specific. Shackleton

testified that the witnesses said the offenders had low haircuts, very little or no facial hair, black

shorts, black shoes and were running southbound on foot. Defendant matched this general

description.

       Defendant next argues that the police lacked probable cause to make a warrantless arrest

because the smell of gunshot residue did not prove he had fired a gun in the recent past. In

general, a police officer cannot make a legal arrest without a warrant supported by probable

cause. People v. Flowers, 179 Ill. 2d 257, 262, 688 N.E.2d 626 (1997). "Probable cause for

arrest exists when facts and circumstances within the arresting officer's knowledge are sufficient

to warrant a man of reasonable caution in believing that an offense has been committed and that

the person arrested has committed the offense." People v. Lippert, 89 Ill. 2d 171, 178, 432

N.E.2d 605 (1982). Probable cause can be established where the police have more than a mere

suspicion that the arrestee committed the crime in question but less than evidence sufficient to

convict. Lippert, 89 Ill. 2d at 178. The difficulty of establishing probable cause is lessened when

it is known that a crime has been committed. Lippert, 89 Ill. 2d at 179-80, citing 1 W. LaFave,

                                                  12
1-05-0668


Search and Seizure §3.2, at 478-85 (1978). " '[T]the existence of known criminal activity serves

to provide an anchor or touchstone, in a time-space sense, which limits the police arrest

authority. Police will not continually be arresting upon a less than 50% probability of guilt, but

only in limited situations where a person is found in an area where it is known a crime has

recently occurred.' " Lippert, 89 Ill. 2d at 179, quoting 1 LaFave, Search and Seizure §3.2, at

484-85 (1978). The police need less of a factual basis to establish probable cause when they are

acting in response to a recent murder or other serious crime than when it is not known if a crime

has been committed. Lippert, 89 Ill. 2d at 180. In cases of serious crime, " 'experience has

shown that the chances of apprehending the offender are slight unless he is caught in the vicinity

of the crime.' " Lippert, 89 Ill. 2d at 180, quoting 1 LaFave, Search and Seizure §3.2, at 484-85

(1978).

          Here, the serious crimes of murder and attempted murder had been committed about 15

minutes before the police apprehended defendant. Defendant was within three blocks of the

crime scene and fit the general description of the fleeing suspects. These circumstances alone

support a finding of probable cause. More facts would have been needed to establish probable

cause if the suspect had been physically or temporally more distant from the scene or if the

officers did not know for certain that a serious crime had been committed. Not only did the time

and place of defendant's apprehension correspond to the time and place of the shooting, but

defendant also fit the description given by the witnesses and had been running as reported by the

witnesses.

          The odor of gunshot residue was yet another fact in support of probable cause.

                                                 13
1-05-0668


"[D]istinctive odors can be persuasive evidence of probable cause. A police officer's detection of

controlled substances by their smell has been held to be a permissible method of establishing

probable cause." Stout, 106 Ill. 2d at 87.

       Here, the facts and circumstances known to Shackleton—physical description, proximity

in time and place and gunshot residue odor—combined to permit a person of reasonable caution

to believe there was probable cause.

       Defendant relies on People v. Johnson, 94 Ill. 2d 148, 159, 445 N.E.2d 777 (1983), to

argue that corroboration of a tipster's information "must support the *** conclusion that the

arrestee and no one else committed the crime." (Emphasis omitted.) Johnson, 94 Ill. 2d at 159.

There, an informant gave police a detailed description and the address of a murder suspect. The

next day, the police went without a warrant to the address and knocked on the door of a second-

floor apartment. Johnson, 94 Ill. 2d at 150. When a woman opened the door, the police

discovered a man inside whose name and appearance matched the informant's tip. The police

arrested the defendant. The supreme court determined that the arrest was illegal because it was

based solely on the conclusory and uncorroborated remarks of an informant. Besides the

questionable tip, the court took into consideration the facts that the defendant was not engaged in

criminal activity, did not flee when confronted and was doing nothing unusual. Johnson, 94 Ill.

2d at 159.

       Here, the police had two sources of information that corroborated each other. The

information over the police radio and the statements from witnesses both described the shooters

as two African-American men in dark clothing who fled southbound on Carpenter. Defendant

                                                14
1-05-0668


was running southbound on Carpenter and was seen at a location within a few blocks of the

shooting within a few minutes of its occurrence. He was wearing black shorts and shoes. An

odor emanated from him that an experienced police officer recognized as the smell of gunshot

residue. These facts distinguish this case from Johnson and support the conclusion that the

police had probable cause to arrest defendant.

       Because we have determined that the police had probable cause, defendant's claims that

his lineup identification, results of the gun residue report and videotaped confession were tainted

by his illegal arrest fail. The trial court correctly denied defendant’s motions to quash arrest and

suppress evidence.

       During the pendency of this appeal, defendant filed and this court granted a motion to cite

as additional authority People v. Hopkins, 363 Ill. App. 3d 971, 845 N.E.2d 661 (2006). In

Hopkins, this court determined that the police made a proper Terry stop but lacked probable

cause to arrest the defendant. The police handcuffed the defendant after noticing in a patdown

search that his heart was racing, he was breathing heavily and he had snow on his pants.

Hopkins, 363 Ill. App. 3d at 982. Two of the three officers present were displaying their guns.

Hopkins, 363 Ill. App. 3d at 983. The defendant was detained without being questioned,

wrestled to the ground by the police, handcuffed and told to wait for the police to explain their

actions. Hopkins, 363 Ill. App. 3d at 982.

       Here, the arrest was based on more than the fact that defendant was sweating and

breathless after running on a hot evening. The odor of gunshot residue, when considered with

the other evidence known to the police at the time, supports a finding of probable cause. As we

                                                 15
1-05-0668


have said, a distinctive odor may be persuasive evidence in support of probable cause. Stout, 106

Ill. 2d at 87.

        Defendant’s next claim is that the trial court erred in failing to require the State to give a

race-neutral reason for using its peremptory challenge to strike an African-American

venireperson, Rose Taylor, as a juror. The Supreme Court has determined that the prosecution

may not use its peremptory challenges purposefully to exclude members of a certain race from a

jury. Batson, 476 U.S. at 84, 90 L. Ed. 2d at 79, 106 S. Ct. at 1716. Defendant argues that after

the prosecutor here explained the reasons for striking three African-American venirepersons, the

trial court failed to demand and the State failed to provide an explanation for striking Taylor.

Defendant also failed to object. Defendant contends that because the State failed to establish a

race-neutral reason for striking Taylor and the court failed to make a ruling as to Taylor, he is

entitled to a new trial or at least a limited proceeding for a Batson determination.

        The Supreme Court in Batson established a three-step process for deciding whether

discrimination occurred in a jury's selection: (1) the party who objected must establish a prima

facie case of purposeful discrimination; (2) if a prima facie case is established, the other party

must articulate a nondiscriminatory explanation for striking the potential juror; and (3) the trial

court then must consider the explanations given and determine whether purposeful

discrimination occurred. People v. Rivera, 221 Ill. 2d 481, 500, 852 N.E.2d 771 (2006), citing

Batson, 476 U.S. at 97-98, 90 L. Ed. 2d at 88-89, 106 S. Ct. at 1723-24.

        The review of a trial court's conclusions after it conducts the three-step Batson analysis is

deferential and reversal is proper only if the decision was clearly erroneous. Rivera, 221 Ill. 2d at

                                                  16
1-05-0668


502. This standard is used because "a trial court's third-stage finding on the ultimate issue of

discrimination rests largely on credibility determinations." (Emphasis in original.) Rivera, 221

Ill. 2d at 502. Where, as here, a defendant's Batson objection reaches the second stage but the

defendant fails to object when the State does not give a race-neutral reason for one of its

peremptory strikes, the argument is forfeited. People v. Primm, 319 Ill. App. 3d 411, 423, 745

N.E.2d 13 (2000).

       The facts in Primm are similar to those here. There, the defendant raised a Batson

objection to three potential jurors who had been challenged by the State. Primm, 319 Ill. App. 3d

at 421. The State explained two of its three challenges. The judge deemed the explanations race

neutral. Primm, 319 Ill. App. 3d at 421. The State did not explain its reasons for excluding the

third venireperson. “The record [did] not suggest that the State’s failure was deliberate.” Primm,

319 Ill. App. 3d at 421. It appeared that neither defense counsel nor the trial judge noticed the

omission and the jury selection continued. Primm, 319 Ill. App. 3d at 421. On appeal, this court

determined the party opposing the peremptory strike, not the court or the prosecutor, had the

responsibility of "pursuing or renewing his original objection." Primm, 319 Ill. App. 3d at 423.

Accord People v. Jackson, 357 Ill. App. 3d 313, 327, 828 N.E.2d 1222 (2005) (a defendant who

raises multiple Batson challenges forfeits his claim if he does not object to the State’s failure to

articulate a race-neutral reason for challenging one particular venireperson). See also Purkett v.

Elem, 514 U.S. 765, 768, 131 L. Ed. 2d 834, 839, 115 S. Ct. 1769, 1771 (1995) (“the ultimate

burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent

of the [peremptory] strike”).

                                                 17
1-05-0668


          Here, defendant did not pursue his objection to the State’s peremptory strike of Taylor.

He did not ask the State for a race-neutral explanation for its peremptory challenge of Taylor.

Defendant has forfeited his right to raise his objection to the peremptory strike of Taylor on

appeal.

          Defendant argues that Primm and Jackson were wrongly decided. Alternatively, he

argues that this court should remand the matter for a new Batson hearing rather than finding his

claim to be forfeited. He relies on cases where courts have found trial court error in resolving

Batson objections, including People v. Garrett, 139 Ill. 2d 189, 194-95, 564 N.E.2d 784 (1990)

(the appellate court should have made a limited remand for the purpose of a Batson hearing

where it found merit to the defendant's claim that the trial court did not follow Batson); People

v. Martinez, 317 Ill. App. 3d 1040, 1044-45, 740 N.E.2d 1185 (2000) (remand for an expedited

Batson hearing was necessary where the appellate court found that the trial court failed to

conduct the proper analysis under Batson); People v. Nunn, 273 Ill. App. 3d 519, 521, 652

N.E.2d 1146 (1995) (remand for a Batson hearing was necessary where defense counsel

repeatedly sought a mistrial on the grounds that the State used peremptory challenges to keep

African-Americans off the jury and the trial court made clearly erroneous decisions and

omissions in resolving the issue).

          Here, defendant did not object to the State's failure to provide a race-neutral reason for its

peremptory challenge to Taylor as did the defendant in Nunn. Nor have we determined that the

trial court erred in applying the three-step Batson analysis as did the courts in Garrett, Martinez

and Nunn. These cases are distinguishable and do not require us to remand this matter for a

                                                    18
1-05-0668


Batson hearing.

       Defendant also contends that in addition to vindicating his own rights, a Batson hearing is

necessary to protect Taylor’s right not to be excluded from the jury on the basis of race, citing

Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991). The Supreme Court in

Powers determined that a defendant in a criminal trial has standing to challenge the State's use of

peremptory challenges to exclude a prospective juror on account of his or her race. Powers, 499

U.S. at 402, 113 L. Ed. 2d at 419, 111 S. Ct. at 1366. The court held that a defendant could raise

a claim on behalf of a third party by demonstrating that: (1) the defendant suffered a concrete

injury; (2) the defendant had a close relation to the third party; and (3) some hindrance prevented

the third party's ability to protect her own interests. Powers, 499 U.S. at 410-11, 113 L. Ed. 2d at

424-25, 111 S. Ct. at 1370-71. Here, defendant has alleged none of these circumstances.

Remand for a Batson hearing is not warranted to vindicate Taylor's right to serve on a jury.

       Defendant’s third claim on appeal is that he should receive a new trial because the trial

court erred in allowing forensic scientist Scott Rochowicz to testify to his opinions on the

gunshot residue tests conducted by Wong, who was unavailable. Defendant contends that

Wong’s statements should not have been admitted because they were improper testimonial

hearsay evidence under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct.

1354 (2004). In Crawford, the Supreme Court determined that the testimonial hearsay statements

of a witness who is unavailable at trial may not be admitted against a criminal defendant unless

the defendant had an earlier opportunity for cross-examination. Crawford, 541 U.S. at 68, 158 L.

Ed. 2d at 203, 124 S. Ct. at 1374. The State argues that this argument is waived because

                                                 19
1-05-0668


defendant failed to preserve the issue for appellate review by objecting at trial and raising the

matter in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 187, 522 N.E.2d 1124 (1988). We

agree that the issue is waived.

        Waiver aside, the trial court did not err in allowing Rochowicz's testimony. 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. People v. Nieves, 193 Ill. 2d 513, 528, 739 N.E.2d 1277

(2000). Here, Rochowicz, a qualified expert, testified that he had reviewed the results of the

gunshot residue test conducted by Wong. He described the procedures Wong used and stated

that in his opinion defendant either had discharged a firearm, handled something contaminated

with residue or been in close proximity to a firearm when it was discharged. Rochowicz was

subject to cross-examination. The trial court did not violate Crawford in allowing Rochowicz's

testimony.

        Having concluded that the trial court did not err in denying defendant's motions to quash

arrest and suppress evidence or in ruling on defendant's Batson challenge or in allowing

Rochowicz to testify to the gunshot residue tests conducted by Wong, we affirm the judgment of

the circuit court.

        Affirmed.

        McBRIDE, P.J., and R.E. GORDON, J., concur.




                                                 20
