FIRST DIVISION November 24, 2014

No. 1-12-0802

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No.08 CR 14015 ) CARLOS HENSLEY, ) Honorable ) Steven J. Goebel, Defendant-Appellant. ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.

OPINION

¶1 A jury convicted defendant, Carlos Hensley, of first degree murder, attempted first

degree murder, and aggravated battery with a firearm in connection with the May 24, 2008,

shooting that killed Kiana Green and injured Christopher Smith. According to the State's

evidence, Green and Smith were stopped at a red light while driving in a car owned by Delorean

Standley. Standley was not in the car, but had been involved in an earlier altercation with

defendant. The defendant, James Davis, and Bernard Norvell pulled up behind Green and

Smith in another car. The State claimed that defendant was mistaken as to the occupants of

Standley's car and fired multiple gunshots into the car, killing Green and injuring Smith. Davis,

Smith, and Norvell identified defendant as the shooter at trial. The circuit court sentenced

defendant to 45 years' imprisonment for first degree murder, with an additional 25 years' No. 1-12-0802

imprisonment for personally discharging a firearm during the murder, and 17 years'

imprisonment for attempted murder, for a total of 87 years' imprisonment.

¶2 Defendant raises the following issues for our review: (1) whether the circuit court erred in

admitting other-crimes evidence; (2) whether the State failed to correct the testimony of one of

its witnesses and presented improper closing argument; (3) whether defendant's confrontation

rights were violated when a medical examiner who did not perform the autopsy of the victim

testified at trial; and (4) whether the evidence was sufficient to sustain defendant's conviction for

attempted murder. Defendant admits that he did not properly preserve his first three claims of

error for our review. He asks that we review his first two claims of error either under the plain

error doctrine or as a claim of ineffective assistance of counsel. He asks this court to review his

third claim of error, i.e. whether his confrontation rights were violated, under only the plain error

doctrine.

¶3 We hold that we must honor defendant's procedural default of his first two claims of error

because he has not shown plain error or ineffective assistance of counsel. Specifically, the

circuit court did not abuse its discretion when it admitted proof of other crimes as they were part

of the continuing narrative of the crime defendant was charged. Defendant's claims of

prosecutorial error fail because he has not shown that the State knowingly used perjured

testimony or that the State's closing rebuttal argument resulted in reversible error. Similarly,

defendant has failed to show plain error when a medical examiner who did not perform the

autopsy of the victim testified at trial because the testimony and admission of the autopsy report

did not violate defendant's confrontation rights. We uphold defendant's conviction for

attempted murder because there is no reason to depart from Illinois precedent regarding the

doctrine of transferred intent.

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¶4 JURISDICTION

¶5 The circuit court denied defendant's motion to reconsider his sentence on February 29,

2012. Defendant timely filed his notice of appeal on the same day. Accordingly, this court has

jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court

Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case

entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013).

¶6 BACKGROUND

¶7 Defendant was charged by indictment with first degree murder, attempted first degree

murder, and aggravated battery with a firearm in connection with the May 24, 2008, shooting of

Christopher Smith and Kiana Green. Green died from her injuries.

¶8 Prior to trial, the State filed a motion to admit proof of other crimes that occurred less

than one hour prior to the shooting at issue in which defendant engaged in different criminal acts

related to discharging a firearm that did not result in criminal charges. The State argued that

these other crimes should be admitted to show defendant's motive, identity, and intent, and that it

would present such proof of other crimes through the testimony of Darius Henry and Bernard

Norvell. Henry would testify that on the night of the incident, between 8 and 9 in the evening,

he was in the area playing dice with a group of men that included defendant's brother, Roselle.

Henry and Roselle got into an argument over the game, and defendant eventually interceded on

his brother's behalf. The argument turned into a fight, and defendant displayed a .357 handgun.

Defendant told Henry to go get his gun, which Henry agreed to do. Henry returned to the scene

with Ian "Marshaun" Rush, and Delorean Standley. Standley and Rush brought guns and began

shooting at defendant. Defendant returned fire.

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¶9 The State anticipated Bernard Norvell would testify that he went to defendant's house on

the day of the shooting at approximately 10:40 in the evening. When he arrived, defendant

pointed his gun at him, a .357 revolver. Norvell had seen defendant carry the gun before.

Norvell grabbed the gun and fought with defendant until defendant told him he was just

" 'fooling around.' " Defendant began recounting the details of his fight with Henry. He heard

gunfire and observed Standley shooting at defendant. Defendant responded with gun fire,

yelling " ' I see you, I see you.' " Later, defendant, Norvell, and James Davis drove around the

area. The shooting at issue of Green and Smith occurred a short time later when Norvell,

Davis, and defendant pulled up behind Green and Smith, who were driving Standley's car, a

maroon Cutlass.

¶ 10 The State argued the fight between Henry, defendant, and Roselle was "inextricably

linked" to the later retaliatory shooting at issue. The State contended that Standley and Rush

shooting at defendant explained an otherwise unexplainable fact, i.e., why defendant would get

out of his car in traffic to shoot into Standley's car. Green and Smith were in Standley's car,

which the State argued was proof that defendant intended to shoot Standley, but he shot Green

and Smith. The State asserted that defendant's intent to kill Standley showed defendant's

motive. Furthermore, the State pointed out that the gunfire evidence recovered from the crime

scene indicated the gun used was either a .38 or a .357. As such, Henry's and Norvell's

testimony that they saw defendant with a .357 gun demonstrated identity. Henry's and Norvell's

testimony also showed defendant's intent to kill Standley, which resulted in his shooting Green

and Smith, the occupants of Standley's car. The State asserted the evidence was more probative

than prejudicial and was not being introduced to show defendant's propensity to commit crime.

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¶ 11 It appears from the record that defendant responded to the State's motion by filing several

motions in limine seeking to bar the other-crimes evidence. Defendant argued that he acted

legally in self-defense when he returned fire at Standley. He argued that the State's retaliation

theory was speculative and irrelevant and would confuse the jury. According to defendant, the

issues the jury should be concerned with were: whether Christopher Smith, an eyewitness and

victim, really saw defendant shooting him; and whether Bernard Norvell and James Davis, the

other eyewitnesses, were lying. Defendant sought to bar Norvell's testimony that he discussed

the fight between Roselle and Henry, that defendant had a gun on him due to the earlier fight,

that Henry was coming back, that defendant pointed his .357 revolver at Norvell in a joking

manner, and that he rode around in a car drinking and smoking marijuana with Norvell and

Davis.

¶ 12 At the hearing on the State's motion and defendant's motions in limine, the circuit court

allowed the State to present evidence on the initial fistfight, defendant's alleged statement that

Henry should go and get a gun, that Henry's associates returned with a gun, and that Standley

shot at defendant. The court found that defendant's later statement, " 'there he goes,' " when he

saw Standley's car provided motive for why the shooting took place. The court noted that the

firearm evidence, that defendant had a .357 gun with him within an hour at or near the crime

scene, was relevant and was "part and parcel of one fact pattern as to what happened." The

court found that the prior crimes were not separate incidents. Rather, the court explained:

"[T]he State is asking under proof of other criminal conduct even though [,] I believe [,] based on

what's been related to me [,] that it is all one set of facts here, and I don’t find it to be separate."

The court further found the testimony to be relevant for intent and identity purposes. Later,

when addressing Norvell's anticipated testimony, the court found that the "statement by the

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defendant as to why he had the gun and as to why they came back *** goes to the whole fact

pattern in this case and is part of the general incident."

¶ 13 The State also petitioned the court prior to trial for a rule to show cause as to one of its

eyewitnesses, Darius Henry, who had failed to appear in court pursuant to subpoena. The State

commented that "I believe the police are looking for Mr. Henry in conjunction with an unrelated

crime," and stressed that it did not know the status of the case, or "if there even is going to be a

case." Defense counsel commented that "I was informed today that Mr. Henry is not only a

fugitive from a pending case, it is a murder case." The court granted the State's petition for a

rule to show cause and gave the State an opportunity to locate Henry.

¶ 14 Approximately a month later, the State informed the court that Henry had been arrested

in Wisconsin "on the ACC contempt of court warrant" issued by the court. The State remarked

that "I know that police were looking for Mr. Henry in conjunction with a murder and I believe

that is why he did not appear here in court pursuant to that warrant, but it is my understanding

from speaking to the detectives even as late as today that Mr. Henry has not been charged in the

area two murder and no warrant has been issued for his arrest in the area two murder." Defense

counsel asked that the State provide any police reports regarding Henry for in camera inspection,

which the court allowed.

¶ 15 At a later hearing, the court indicated to the parties that it had looked at the police report

and decided not to tender it because it had "nothing at all to do with this case." The court noted,

however, that Henry was a named suspect in the police report, and it allowed defense counsel to

ask Henry if he was aware there was a pending murder investigation against him. The court

also allowed the defense to ask whether Henry made a deal with the State. The State indicated

to the court that it had spoken with Henry and told him that it would not be discussing any other

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unrelated incidents. The court allowed Henry to testify and commented that "[t]he fact [is,] it's

a pending investigation, charges have not been approved."

¶ 16 Defendant filed a motion in limine prior to trial seeking to bar the testimony of the

State's alternative medical examiner. Defendant explained that Dr. Michel J. Humilier

performed the autopsy and autopsy report of Kiana Green, the victim. Defendant argued that

allowing a substitute witness for Dr. Humilier would violate his confrontation and due process

rights. At oral argument, the State informed the court that Dr. Humilier had left the office of

the medical examiner. The court denied defendant's motion in limine and allowed the State to

present the testimony of an alternative medical examiner.

¶ 17 At trial, James Davis testified that he was with defendant and Bernard Norvell on the

night of the shooting. When he first met defendant, defendant was playing with a gun "pointing

it toward" Norvell. Norvell told defendant to "stop playing like that." Davis testified further

that they were standing in front of defendant's house when gunshots were fired. Davis and

Norvell ran through the gangway, but defendant stayed and shot back. Defendant told the

shooters that " 'I see you.' " Davis, Norvell, and defendant drove to a liquor store about a block

and a half away to get something to drink and to smoke marijuana. After buying the liquor,

Davis got in the backseat of the car, while Norvell drove and defendant sat in the front passenger

seat. They drove around for 15 or 20 minutes. Davis smoked marijuana in the backseat, and

was not fully alert because he "was dozing off from the marijuana and the liquor." He then "felt

a jerk" and heard a voice say " 'there they go.' " A burgandy Cutlass was stopped in front of

them at a stoplight. Defendant got out of the car and Davis saw him shooting at the car. He

saw glass shattering and muzzle flashes. Davis was "[s]hocked" and "stunned." When

defendant returned to the car, Novell told him, " 'Man, why the [expletive] did you do that out of

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my wife's car, my kids be in here.' " Norvell dropped defendant off approximately two to five

minutes later. Davis admitted that he was compensated by the State for travel and lodging

costs, and that he had a 2009 conviction for aggravated unlawful use of a weapon and a 2002

conviction for delivery of a controlled substance.

¶ 18 On cross-examination, Davis testified he was friends and cousins with Norvell. He

"was cool" with defendant, and explained "[w]e never had no bad terms." Davis testified he

was drinking vodka. He agreed that he signed a statement that indicated after the shooting, they

drove around for 15 minutes before dropping defendant off. On redirect examination, Davis

testified that in order to get to the backseat, he had to climb over the front seat because the back

doors did not open.

¶ 19 Bernard Norvell testified that around the time of the shooting, he saw defendant

regularly. He testified consistently with Davis's account of the events prior to the shooting at

issue and added that, when defendant was playing around with the gun, it was a .357 revolver.

Norvell testified that he, defendant, and James drove around in his wife's car. Norvell testified

he drove the car, James was in the backseat, and defendant occupied the passenger seat. While

driving, Norvell pulled up next to a person named "B," whom he did not like. He asked

defendant if he had a gun, and defendant said "No." Norvell admitted he would have shot "B"

had defendant told him he had a gun.

¶ 20 Norvell testified that upon driving back to near where the initial shooting occurred,

defendant stated " 'there they go.' " Norvell saw a maroon, four-door Cutlass, which he

explained "was the car that the shooter supposed to have." Norvell thought Delorean Standley

and Darius Henry were in the car because Delorean Standley usually drove it. He noticed two

people in the car. Defendant asked him to pull up to the side of the car, but he refused because

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he was under the impression that defendant did not have a gun on him. When he refused,

defendant got out of the car. Norvell testified defendant then walked to the "back of the car on

the passenger side and shot once through the back window." The back window shattered. He

estimated that defendant shot the gun in the passenger side of the car five times. Norvell

questioned defendant why he would do that in his car, because his kids use the car. Defendant

disposed of the gun with a neighbor. Defendant thought he shot Henry in the passenger seat.

¶ 21 Norvell admitted that he was not truthful when he first spoke to the police and denied that

he knew who shot Kiana Green. He added that the back doors of the car he was driving, which

belonged to his wife, were unable to be opened. Norvell admitted to having three prior felony

convictions: two for unlawful use of a weapon, and an "aggravated domestic." He admitted that

he had three pending cases against him: one for a probation violation, one for unlawful use of a

weapon by a felon, and one for having his driver's license revoked. On cross-examination,

Norvell clarified that he was not a cousin by blood with Davis; rather, it was through marriage.

¶ 22 Darius Henry testified he was currently in custody for contempt of court for failing to

appear after being subpoenaed in this matter. He was arrested in Wisconsin for occupying a

vehicle without the owner's consent. When asked whether it was "[l]ike a stolen car," Henry

answered "[y]es." Marijuana was found in the car. Henry testified that on the day of the

incident, he was playing basketball and "[c]raps," a dice game, with defendant's brother, Roselle.

Henry got into a fistfight with Roselle. Defendant interceded and told his brother to fight

Henry. During the fistfight, defendant pulled out a gun, a .357 Magnum. Defendant told

Henry to go get his gun. Henry called his brother, Ian "Marshaun" Rush, and Delorean

Standley, so that they could get him a gun. Standley, Rush, and Henry then returned to

defendant's house. Standley and Rush were armed, but Henry was not. Their plan was to

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shoot defendant. Upon arrival at defendant's house, Standley and Rush fired multiple shots at

defendant. Defendant shot back and yelled, "Come on, [expletive] ' " The last thing Henry

heard was defendant saying " ' I'm gonna kill you, [expletives].' " Henry described the shooting

as a "shoot-out" that lasted "maybe a minute and a half." Henry ran when defendant started

shooting back. Henry testified Standley drove a maroon Cutlass.

¶ 23 On cross-examination, defense counsel asked Henry the following question:

"MR. MAYFIELD [Assistant Public Defender]: However,

you are under investigation or the subject of a murder investigation

here in Chicago, aren't you?

A. Not that I know of.

Q. You didn't hear anything about that?

A. No, sir. "

¶ 24 Henry clarified on cross-examination that defendant was the only person that did not run

in the shootout.

¶ 25 Christopher Smith testified that on the day of the shooting, he was with his girlfriend,

Kiana Green. He called Delorean Standley, a friend of his, so that he could "switch cars with

him." He traded cars with Standley because he did not like his car anymore and was trying out

Standley's car. After switching cars, he drove around with Green. At approximately, 11:30

p.m., Smith stopped at a red light. Green was on the passenger side. He then saw, through his

rearview mirror, defendant get out of the car, and walk toward him. Smith testified that "I just

hear a shot and then I tried to pull off. I felt myself getting shot up." He was hit five times

and heard five or six gunshots. He tried to pull away, but lost control of the car. Eventually,

he gained control of the car and drove to Trinity Hospital.

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¶ 26 Smith initially did not tell the police because he "wanted to take care of it" himself,

which meant that he wanted to kill defendant. His mother convinced him to speak with the

police. He admitted he was convicted of unlawful use of a weapon by a felon in 2008,

aggravated unlawful use of a weapon in 2003, and possession of a stolen motor vehicle in 2000.

On cross-examination, Smith testified he wanted defendant convicted. He also admitted to

smoking marijuana that evening. He added that Green was asleep in the front seat. He saw

the shooter get out the front seat, and he thought that defendant came within five or six feet of

the car.

¶ 27 Officer Eric Szwed, a forensic investigator for the Chicago police department, testified he

and his partner processed the vehicle containing the victims of the shooting, a 1992 maroon

Oldsmobile. The vehicle had gunshot damage to it including shattered windows and holes in

the doors. Glass fragments were found at the scene of the shooting. Bullet fragments were

collected from Christopher Smith's shirt. On cross-examination, Officer Szwed stated that there

was no physical evidence at the scene of the crime linked to defendant and no gun was

recovered.

¶ 28 Melissa Nally, a forensic scientist with the Illinois State Police, testified as an expert in

firearm's identification. She analyzed the following evidence: "One fired bullet jacket

fragment, one metal fragment, one fired bullet jacket, another fired bullet jacket, a fired bullet

core, and another fired bullet jacket." She found all the items were fired from the same

weapon, either a .38 or .357. She did not have a gun to examine.

¶ 29 Detective Shirley Colvin of the Chicago police department testified she was assigned to

investigate the shooting. When she arrived at the scene, the only evidence of the crime was

glass on the street. She and her partner went to Trinity Hospital and found the vehicle, which

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she learned was owned by Delorean Standley. She eventually spoke with the living victim,

Christopher Smith, but he was uncooperative. Detective Colvin's second attempt to interview

Smith was also unsuccessful. Eventually, Smith agreed to speak with her.

¶ 30 On cross-examination, she admitted that Smith told her that the shooter got out of the

backseat of the car, ran up to his car, and started shooting. She further admitted that they never

found Norvell's car and, thus, never determined if the back doors were inoperable. On redirect

examination, Detective Colvin clarified that Smith "said it was the passenger side of the vehicle,

maybe the backseat." Detective Colvin agreed that Smith was not definitive that the shooter

came out of the backseat. Smith was looking out the rearview mirror. On re-cross-

examination, she testified "He said that the shooter got out of the passenger side of the car,

possibly the back seat or maybe the backseat." She then clarified her report does not say

"maybe," only "possibly."

¶ 31 Dr. Ariel Goldschmidt, an assistant medical examiner for Cook County, testified as an

expert in forensic pathology. He explained that as a medical examiner, he investigates sudden

and unexpected deaths by performing autopsies and reviewing records. Regarding Green's

death, he testified it was caused by a gunshot wound to the head, which he classified as a

homicide. Dr. Goldschmidt did not perform the autopsy on Green; Dr. Michele Humilier did.

At the time of trial, Dr. Humilier was no longer employed with the Cook County medical

examiner. Dr. Goldschmidt agreed that he was essentially testifying in her place, but that he

had formed his own opinion. In reaching his opinion, he reviewed photographs, the autopsy

report, and hospital records. The top of Green's head contained two injuries, a circular hole and

a large irregular hole. The bullet from the shooting entered the right side of Green's head near

the top and moved downward and leftward and lodged in the brain. The bullet damaged the

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brain. Dr. Humilier saw gunpowder stippling, which Dr. Goldschmidt explained as: "If a gun is

fired at a certain range, there's gunpowder that exits the muzzle *** and causes a pattern

impression on the skin." Stippling can indicate the range of a gunshot. Dr. Goldschmidt did

not agree with Dr. Humilier's opinion regarding the stippling found on Green. After reviewing

the photos, Dr. Goldschmidt thought that "pseudo-stippling" occurred. He defined

pseudo-stippling as "when a bullet goes through glass, like a window, it shatters the glass into

very small pieces that can mimic gunpowder in the same pattern that the little pieces gunpowder

would make that can be made by little pieces of glass."

¶ 32 On cross-examination, Dr. Goldschmidt reiterated that he did not perform the autopsy

and clarified that he was not present during the autopsy. He had not talked to Dr. Humilier

regarding the autopsy. Dr. Goldschmidt testified that stippling can occur in shooting ranges up

to four feet, depending on the type of gun. He disagreed with Dr. Humilier's opinion on the

stippling because of the irregularity and size of the stippling marks.

¶ 33 A certified copy of the autopsy report was marked as an exhibit for the State. The report

was admitted into evidence, but it did not go back to the jury. The autopsy report shows that

Dr. Humilier examined Kiana Green's body on May 29, 2008, and signed the report on June 9,

2008. The seal indicating it to be a certified copy is dated July 7, 2011.

¶ 34 Rhonda Pitts testified that although she is married to Bernard Norvell, they were

separated at the time of trial. She owned the car Norvell drove on the day of the shooting.

According to Pitts, the rear doors never had any problems being locked. On cross-examination,

Pitts agreed that she could not remember if there were any problems with the back doors. She

later answered "Right" when asked, "There was a period of time when the doors didn't work, but

you couldn’t remember when that was, right?"

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¶ 35 Dennis Shaw, an investigator for defendant, testified he interviewed Pitts on June 26,

2011. According to Shaw, Pitts told him that the rear doors worked and there was no problem

with the vehicle when she owned it. Marshon Meekins testified he worked on Pitts's car and

never noticed anything wrong with the rear doors. On cross-examination, he admitted he never

worked on the car in 2008.

¶ 36 The parties stipulated that Mary Smith, Christopher Smith's mother, would have testified

that she spoke with her son in the hospital after the shooting. Her son related to her that he had

no idea who shot him. The parties further stipulated that Kevin Green and Anita Green, the

deceased victim's parents, would have testified that they spoke with Christopher Smith in the

days following the shooting. They would have testified that Smith could not provide any

information identifying the shooter. The parties further stipulated that Officer B. Carmickle

would testify that Christopher Smith told him at the hospital that that "an unknown offender or

offenders came from behind and began shooting at the victims."

¶ 37 Prior to closing arguments, the court admonished the jury that closing arguments are not

evidence and that statements not based on evidence or reasonable inferences to be drawn from

the evidence should be disregarded.

¶ 38 During its opening closing argument, the State focused on how the jury instructions

applied to the evidence presented and argued the evidence showed defendant's guilt. Defense

counsel, during his closing argument, characterized the State's witnesses as "liars, criminals,

[and] killers." Defense counsel argued that both James Davis and Barnard Norvell also had

motive to shoot at Delorean Standley and noted that Darius Henry "came in in shackles."

Defense counsel argued that instead of shooting Henry after the fight with defendant's brother,

defendant told him to go get a gun, which made "it fair." Defense counsel stated "[i]t's a

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different society there, the rules are different but the people are people." Defense counsel

further argued that Davis and Norvell were "cold blooded killers" and "gun wielding felons" and

that "[t]hey are bad people, proud to kill." Defense counsel stressed that Norvell is a liar who

would lie to get out of being charged for the murder. He further argued that James and Norvell

were going to stick together because they were family, whereas defendant was just "an

acquaintance." According to defense counsel, Norvell and James did not call the police

because they committed the crime. He also described Christopher Smith as "not a truth teller"

and questioned the accuracy of Smith's identification of defendant as the shooter based on the

time of night and Smith's admission that he smoked marijuana.

¶ 39 In rebuttal, the State commented on defense counsel's remarks that the area of the

shooting was a "different society." The State admitted that its own witnesses, Norvell, Henry,

and Smith, were outlaws who typically would not call the police, but it asked the jury not to

reject them for coming forward in this matter. 1

¶ 40 The jury was instructed, in relevant part, that neither opening nor closing statements are

evidence and arguments or statements made by an attorney that are not based on the evidence

should be disregarded. The jury was also instructed that defendant had been involved in

conduct other than that charged in the indictment. The instruction stated, "This evidence has

been received on the issues of the defendant's identification, presence, intent, and motive and

may be considered by you only for that limited purpose." The instruction further provided that

it is up to the jury "to determine whether the defendant was involved in conduct and, if so, what

1 We will discuss the State's rebuttal closing argument in more detail in the analysis section.

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weight should be given to this evidence on the issues of identification, presence, intent and

motive."

¶ 41 The jury found defendant guilty of first degree murder and aggravated battery with a

firearm and that during the commission of the offense of attempted first degree murder,

defendant was armed with a firearm. The jury found that during the commission of first

degree murder that defendant personally discharged a firearm that proximately caused the death

of another person.

¶ 42 Defendant filed a motion for a new trial, which the circuit court denied. The circuit

court sentenced defendant to 45 years' imprisonment for first degree murder, with an additional

25 years for personally discharging a firearm during the murder, and 17 years' imprisonment for

attempted murder, for a total of 87 years' imprisonment. The circuit court denied defendant's

motion to reconsider his sentence. Defendant appealed.

¶ 43 ANALYSIS

¶ 44 Before we address defendant's claims of error individually, we note that defendant admits

that he failed to properly preserve for our review his first three claims of error. He asks that we

review his first two claims of error, i.e., whether the circuit court erred in admitting other-crimes

evidence, and whether the State failed to correct false testimony and made improper closing

argument, under either the plain error doctrine or as a claim of ineffective assistance of counsel.

He asks that we review his third claim of error, i.e., whether his confrontation rights were

violated by Dr. Goldschmidt's testimony and the admission of the autopsy report, under only the

plain error doctrine.

¶ 45 The plain error doctrine allows this court to reach forfeited errors affecting substantial

rights in two instances: (1) "where the evidence *** is so closely balanced that the jury's guilty

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verdict may have resulted from the error and not the evidence"; and (2) "where the error is so

serious that the defendant was denied a substantial right, and thus a fair trial." People v.

Herron,

(2005). Under the closely balanced prong of the plain error

doctrine, the defendant must show prejudicial error, while under the second prong, prejudice is

presumed.

. Defendant bears the burden of persuasion under either prong of the

plain error doctrine.

A defendant's failure to carry the burden of persuasion results in the

procedural default being honored. People v. Eppinger,

. The first step in

plain-error analysis is to determine whether an error occurred at all.

¶ 46 The right to the effective assistance of counsel is guaranteed under both the federal and

Illinois Constitutions. People v. Domagala,

(citing U.S. Const., amends.

VI, XIV, and Ill. Const. 1970, art. I, § 8). Ineffective assistance claims are analyzed under the

standards set forth in Strickland v. Washington,

(1984), as adopted by our supreme

court in People v. Albanese,

(1984). To prove ineffective assistance of counsel,

defendant has to show both deficient performance of trial counsel and that trial counsel's

performance prejudiced him. People v. Evans,

(2004). Defendant has

the burden of proving that he did not receive the effective assistance of counsel. People v.

Rucker,

(2003). To establish prejudice, a "defendant must prove that

there is a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." People v. Easley,

(2000). If

prejudice is not shown, a court can dispose of an ineffective assistance of counsel claim without

first determining whether counsel's performance was deficient. People v. Givens,

(2010).

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¶ 47 The closely-balanced-evidence prong of the plain error doctrine and ineffective assistance

claims based on evidentiary error are similar in that "[b]oth analyses are evidence-dependent and

result-oriented." People v. White,

. Under either analysis, a

defendant has to show prejudice. Id. ¶ 133. Accordingly, where a defendant fails to show

prejudice, a defendant's allegations of ineffective assistance of counsel and plain error under the

closely-balanced-evidence prong both fail. Id. ¶ 134. Similarly, the failure of a defendant to

show that error occurred at all defeats both an ineffective assistance claim and a claim of error

under either prong of the plain error doctrine. People v. Rutledge,

(2011). As explained hereafter we conclude that defendant has failed to show error.

¶ 48 Other-Crimes Evidence

¶ 49 Defendant contends the circuit court erred in admitting evidence of uncharged criminal

conduct. Specifically, defendant believes it was improper to allow evidence showing that he

returned fire after being shot at by Delorean Standley, pointed a .357-caliber revolver at Bernard

Norvell, and threatened Darius Henry with a .357-caliber revolver. Defendant argues that the

State improperly used this evidence to show his propensity to commit the charged offense and

was not probative except to show his propensity for gun violence. In response, the State argues

it properly presented a continuing narrative of the events that occurred on the evening of the

incident. As such, the State argues it was not other-crimes evidence. Rather, it was

admissible evidence of the continuing narrative of events. Accordingly, the State argues

defendant cannot establish plain error or ineffective assistance of counsel.

¶ 50 Relevant evidence of other crimes is admissible "for any purpose other than to show a

defendant's propensity to commit crimes." People v. Chapman,

. These

other purposes include motive, intent, identity, absence of mistake, modus operandi, "and any

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material fact other than propensity that is relevant to the case." People v. Donoho,

(2003). If the prejudicial effect of evidence properly admitted for nonpropensity

purposes outweighs its probative value, the circuit court can still exclude such evidence.

¶ 51 Our supreme court "has recognized that evidence of other crimes may be admitted if it is

part of the 'continuing narrative' of the charged crime." People v. Pikes,

(quoting People v. Adkins,

(2010)). In such cases, ordinary relevancy

principles apply and the rule related to other crimes is not implicated. Rutledge,

. This court has described evidence properly admitted as a continuing narrative as

where intrinsic acts are " 'a necessary preliminary to the current offense,' " and where "the prior

crime is part of the 'course of conduct' leading up to the crime charged." People v. Morales,

(quoting People v. Manuel,

(1997)). Uncharged crimes admitted as a continuing narrative "do not constitute separate,

distinct, and disconnected crimes." Pikes,

. Conversely, distinct crimes

made for different reasons at different times and places will not be admitted as a continuing

narrative. Adkins,

. We review the circuit court's ruling on the admission of

evidence for an abuse of discretion. Pikes,

.

¶ 52 We hold that the circuit court did not abuse its discretion when it admitted evidence

showing defendant returned fire after being shot at by Delorean Standley, pointed a .357-caliber

revolver at Bernard Norvell, and threatened Darius Henry with a .357-caliber revolver an hour

prior to the shooting for which he was charged. The evidence that defendant possessed a

.357-caliber revolver, and fired it, was relevant because the ballistic evidence showed that the

murder weapon was either a .38 or a .357. The prior uncharged crimes evidence showed

defendant instigated the chain of events that led to the eventual shooting at issue. First,

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defendant threatened Henry and told him to go get his gun after Henry fought his brother.

Henry responded by returning with Standley and Rush, who began shooting at defendant.

Defendant returned fire. Later, defendant spotted Standley's car and began shooting it and its

occupants, Kiana Green and Christopher Smith. Accordingly, we find that the evidence

admitted was "part of the 'course of conduct' leading up to the crime charged." Morales,

(quoting Manuel,

). We agree with the circuit

court's characterization of the evidence as one continuous fact pattern and hold that the circuit

court properly admitted the evidence as part of a continuing narrative of the crime charged.

Therefore, the evidence was properly admitted. Accordingly, defendant's failure to show error

occurred here is fatal to both his plain error and ineffective assistance of counsel claims.

Rutledge,

.

¶ 53 Prosecutorial Errors

¶ 54 Next, defendant asks this court to review, either under the plain error doctrine or as a

claim of ineffective assistance of counsel, whether the State failed to correct the allegedly false

testimony of one of its witnesses and whether the State made improper closing arguments.

¶ 55 False Testimony

¶ 56 Defendant argues that the State failed to correct the false testimony of one of its

witnesses, Darius Henry. Defendant argues the State knew Henry was a suspect in a murder

case, yet failed to correct the following testimony, elicited during defendant's cross-examination

of Henry:

"MR. MAYFIELD [Assistant Public Defender]: However,

you are under investigation or the subject of a murder investigation

here in Chicago, aren't you?

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A. Not that I know of.

Q. You didn't hear anything about that?

A. No, sir. "

¶ 57 In response, the State argues it is impossible to prove that Henry perjured himself when

he said he was not aware he was a suspect in an unrelated case. According to the State, "unless

the police took the bizarre step of telling a homicide suspect, not then in custody, that he was a

homicide suspect, [Henry] had no way of knowing what was in the mind of the police officers."

¶ 58 It is a violation of due process for the State to knowingly allow perjured testimony to be

used in a criminal prosecution. People v. Jimerson,

(1995). "A

conviction obtained by the knowing use of perjured testimony must be set aside if there is any

reasonable likelihood that the false testimony could have affected the jury's verdict." People v.

Olinger,

(1997). The harmless error standard is this standard's equivalent.

Furthermore, a verdict will be set aside even where the State fails to correct testimony it did

not solicit or where the false testimony only goes to the witnesses' own credibility. People v.

Wright,

. The State is only obligated to correct the false

testimony of a witness when it knows that such a witness is mistaken.

¶ 59 Defense counsel's questioning of Henry during cross-examination resulted in Henry

answering as to his own knowledge of any pending investigation. Defense counsel first asked

him if he knew he was a suspect in a murder investigation, to which he responded, "Not that I

know of." Defense counsel followed up by asking Henry, "You didn't hear anything about

that," to which Henry responded "No, sir." The record is clear that both parties and the court

knew of the pending murder investigation, and the court allowed defense counsel to ask Henry

about his knowledge of the investigation. Absent from the record, however, is any indication

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that the State had knowledge that Henry knew he was under investigation for a murder and thus

committed perjury. The State "believe[d]" that Henry failed to appear in court due to a pending

murder investigation, but never stated in the record that Henry knew the police were

investigating him for murder. Henry testified he was eventually arrested in Wisconsin for

occupying a vehicle without the owner's consent. Accordingly, it is impossible, based on the

contents of the record, to determine whether the State had knowledge that Henry knew he was

the subject of a pending murder investigation. Henry could have been avoiding court for a

multitude of reasons, none of which are disclosed in the record. Therefore, we hold defendant's

plain error and ineffective assistance claims fail because no error occurred here. Rutledge,

.

¶ 60 Even if the knowing use of perjured testimony occurred here, such a conviction will only

be "set aside if there is any reasonable likelihood that the false testimony could have affected the

jury's verdict," a standard equivalent to harmless error. Olinger,

. We find

that any error regarding Henry's alleged perjured testimony was harmless error. Unlike

Christopher Smith, Bernard Norvell, and James Davis, Henry was not an eyewitness to the

murder. The eyewitness testimony from Smith, Norvell, and Davis describing defendant

shooting the victims provided overwhelming evidence of defendant's guilt. Also, the jury was

apprised of unfavorable aspects of Darius's life, including his involvement in the prior fight with

defendant that eventually led to a shootout, his Wisconsin arrest for occupying a vehicle without

the owner's consent, and that the police found marijuana in the car. Accordingly, we hold

Henry's alleged false testimony could not have affected the verdict.

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¶ 61 Closing Argument

¶ 62 Defendant next argues that the State made improper remarks during closing argument

that preyed on the passions of the jurors, misstated the law, and misstated the evidence. In

response, the State argues that its closing arguments were properly based on the evidence or

reasonable inferences from the evidence, or were invited by defense counsel.

¶ 63 We note that this court has recognized that there is confusion regarding what the proper

standard of review is under these circumstances. People v. Thompson,

, ¶¶ 75-78. There appears to be a conflict between two supreme court cases: People v.

Wheeler,

(2007), which held that a prosecutor's statements during closing

argument are reviewed de novo; and People v. Blue,

(2000) where the supreme

court used the abuse of discretion standard. Thompson,

, ¶¶ 75-78.

We need not, however, make that determination at this time because here the result would be the

same under either standard of review. Id. ¶ 78.

¶ 64 Generally, prosecutors are allowed wide latitude in making closing arguments. People

v. Runge,

(2009). "They may comment on the evidence and on any fair and

reasonable inference the evidence may yield."

This is true "even if such inferences are

unfavorable to the defendant." People v. Hudson,

(1993). The State

"must refrain from making improper, prejudicial comments and arguments," but "may ***

respond to comments by defense counsel which clearly invite a response."

As such,

defendant cannot complain that he was denied a fair trial by a prosecutor's reply when defense

counsel provoked such a response.

. In reviewing closing arguments, we must

consider the whole argument as opposed to focusing on selected remarks or phrases. Runge,

. Reversible error only occurs "if the defendant demonstrates that the

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improper remarks were so prejudicial that real justice was denied or that the verdict resulted

from the error."

People v. Pasch,

(1992) ("Although the prosecutor's

remarks may sometimes exceed the bounds of proper comment, the verdict must not be disturbed

unless it can be said that the remarks resulted in substantial prejudice to the accused, such that

absent those remarks the verdict would have been different.").

¶ 65 Defendant first argues the State improperly argued during rebuttal closing argument that

the crossing over of the State's witnesses from the underworld into our world made them more

credible. Defendant argues this inflamed the passions of the jurors. In response, the State

argues that it properly commented on the credibility of the witnesses and the facts of the crime.

The State points out that the complained-of comments occurred during rebuttal argument, after

defense counsel invited such a reply by calling the State's witnesses liars and incredible.

¶ 66 Our review of the record shows that during closing arguments, defense counsel

characterized the State's witnesses as "liars, criminals, [and] killers." Defense counsel stated

"[i]t's a different society there, the rules are different but the people are people." Defense

counsel further argued that Davis and Norvell were "cold blooded killers" and "gun wielding

felons," and that "[t]hey are bad people, proud to kill." According to defense counsel, Norvell

and James did not call the police because they committed the crime. He described Christopher

Smith as "not a truth teller." In rebuttal, The State argued that law-abiding citizens in the area

where the crime occurred were "held hostage" by people such as Norvell, Smith, Davis, and

defendant. The State argued as follows regarding the testimony of Norvell, Davis, Smith, and

Henry:

"They are trying. When they come to this court, when they

finally tell the police the truth and they came into this court under

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oath to tell you the truth, they are trying not to be outlaws, they are

trying to live in our world, because, make no mistake, ladies and

gentlemen, and you have seen a tremendous example of it in this

case, there is an underworld that exists just below us. We go

about our lives, whatever we do, whatever kind of work we do,

wherever we live, wherever we are raising families, there is this

underworld.

But this case is a perfect example of that underworld coming

up and clashing in a collision with our world and in this case the

world of Kiana Green."

¶ 67 The prosecutor then went on to state:

"If we reject them because of the lives they have chosen for

themselves, if we reject them because they are not like us, if we

reject them because we say your world is your world and we're not

a part of it, we are doing everyone a disservice but especially

Kiana Green who is not of their world."

¶ 68 After reviewing the closing arguments in their entirety, we hold defendant invited a

response regarding the credibility of the State's witnesses in rebuttal closing argument. As the

above recitation of defense counsel's closing argument and the State's rebuttal shows, defense

counsel attacked the credibility of the State's witnesses based on their history and section of

society. It is well established that "when defense counsel provokes a response, the defendant

cannot complain that the prosecutor's reply denied him a fair trial." Hudson,

.

The State, in accordance with defense counsel's provocation, addressed the society of its

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witnesses and argued why they should be found credible despite their background. We find no

reversible error here because defense counsel's closing argument invited the State's response that

defendant now claims to be improper.

¶ 69 Defendant next argues the State misstated the law during rebuttal closing argument when

it discussed the first jury instruction, which instructed the jury to consider only the testimony of

the witnesses, the exhibits, and the stipulations that the court received. According to defendant,

the State overemphasized the importance of what the witnesses told the jury over their past

statements, and wrongly stated that past statements were not for the jury's consideration. The

State argues that defendant is reviewing the prosecutor's comments out of context.

¶ 70 Our review of the closing arguments shows that the State urged the jury to read the first

jury instruction in its entirety, which it recited as follows: "[T]he evidence which you should

consider consists only of the testimony of the witnesses, the exhibits and the stipulations which

the Court has received." The State then focused on the part of the instruction addressing "the

testimony of the witnesses" which the State defined as:

"That means we're not here to talk about who said what to the

police at what time. It's the testimony of the witnesses. It's what

Christopher Smith told you. It's what James Davis told you. It's

what Bernard Norvell told you. That's what the evidence is."

¶ 71 The State then stressed to the jury that it was also to consider the exhibits and the

stipulations.

¶ 72 After reviewing the entire closing argument, we agree with the State that defendant's

argument here is based on one comment taken out of context. First, the State asked the jury to

read the "whole" first jury instruction, which it then read. The State told the jurors that

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although they are to consider the stipulations and the exhibits, it wanted them to focus on the

witnesses. The State then explained its version of why Christopher Smith initially lied to the

police. In reviewing closing arguments, we must consider the whole argument as opposed to

focusing on selected remarks or phrases. Runge,

. Here, we do not find that

the State misstated the law after reviewing its whole argument. Although the State drew the

jury's attention to its witness testimony, it did not misstate the law.

¶ 73 Defendant's final claim of error regarding the State's closing argument is that the State

misstated the evidence. According to defendant, the State told the jury that Bernard Norvell

implicated defendant in the crime only after the police confronted him with Christopher Smith's

identification of defendant as the shooter. The State maintains that defendant misstates the

facts contained in the record and conflates inferences with facts in making its claim of error.

¶ 74 We hold that even if we accept defendant's argument that the State improperly argued

that Norvell only implicated defendant after being confronted with Smith's statement, we cannot

say that the State's isolated remarks during rebuttal closing argument "resulted in substantial

prejudice to the accused, such that absent those remarks the verdict would have been different."

Pasch,

. In this case, the evidence of defendant's guilt was overwhelming,

particularly because two other eyewitnesses, besides Henry, identified defendant as the shooter.

Furthermore, we must look at the closing arguments in their entirety and not focus on isolated

comments or remarks. Runge,

. In the context of the lengthy closing

argument presented by the State, we cannot say that one isolated remark concerning only one of

the three eyewitnesses to the shooting would have changed the verdict. Accordingly, defendant

has not shown ineffective assistance of counsel or plain error. Rutledge,

.

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¶ 75 Confrontation Clause

¶ 76 Defendant next asks this court to review, under the plain error doctrine, whether his right

to confront the witnesses against him was violated when the State presented testimony from a

medical examiner that did not perform the autopsy of the victim's body. According to

Defendant, Dr. Goldschmidt testified to testimonial statements from Dr. Humilier's certified

autopsy report. Defendant argues the report was then admitted for its truth, not to explain the

basis of Dr. Goldschmidt's opinion. Defendant acknowledges our supreme court's opinion in

People v. Leach,

, but argues that Leach is both distinguishable and incorrectly

decided. In response, the State maintains that Leach is directly on point and controlling on this

issue because the autopsy report was prepared in the normal course of business as part of the

medical examiner's office's duties.

¶ 77 We agree with the State that Leach is controlling here. In Leach, our supreme court

determined whether the admission of opinion testimony of a pathologist who did not perform the

autopsy of the victim, and the admission of the autopsy report itself, violated a defendant's

confrontation rights. Id. ¶ 1. The Leach court addressed the issue by first deciding whether

the admission of the autopsy report violated the confrontation clause because "if the report was

properly admitted, the expert witness's testimony cannot have violated the confrontation clause

even if it had the effect of offering the report for the truth of the matters asserted therein." Id. ¶

57. After holding that the admission of the autopsy report was admissible under either the

Illinois Rules of Evidence (Ill. R. Evid. 803(6), 803(8) (eff. Jan. 1, 2011)) or state statute (725

ILCS 5/115-5.1 (West 2002)), the court determined whether the autopsy report was testimonial

hearsay. Leach,

. The court held that the autopsy report "was not

testimonial because it was (1) not prepared for the primary purpose of accusing a targeted

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individual or (2) for the primary purpose of providing evidence in a criminal case." Id. ¶ 122.

The court explained that the medical examiner's office conducted the autopsy, and prepared and

submitted the report, pursuant to state law. Id. ¶¶ 126-32 (citing 55 ILCS 5/3-3013 (West

2010)). The court reasoned that: "[a]n autopsy report is prepared in the normal course of

operation of the medical examiner's office, to determine the cause and manner of death, which, if

determined to be homicide, could result in charges being brought." Id. ¶ 130.

¶ 78 In the case at bar, Dr. Humilier's autopsy report was prepared in the normal course of

business pursuant to the medical examiner's office's duties. Dr. Humilier performed the autopsy

and the report under state law, for reasons of public health, not for the primary purpose of

criminal litigation. The autopsy report here was not testimonial. Both the admission of the

report and Dr. Goldschmidt's expert testimony did not violate defendant's confrontation rights.

Id. ¶ 57 ("However, if the [autopsy] report was properly admitted, the expert witness's testimony

cannot have violated the confrontation clause even if it had the effect of offering the report for

the truth of the matters asserted therein."). We hold, as in Leach, that defendant's confrontation

rights were not violated by the admission of Dr. Goldschmidt's expert testimony or the admission

of a copy of the autopsy report.

¶ 79 Defendant argues that the autopsy report in this case is distinguishable to the report in

Leach because he alleges it was "a certified autopsy report." In Leach, our supreme court noted

that the autopsy report at issue was not sworn or certified. Id. ¶ 131. Rather, it was just

signed by the doctor who performed the autopsy. Id. Recently, this court considered an

autopsy report not to be certified or sworn even though a certified copy of the autopsy report was

admitted into evidence. People v. Crawford,

, 151 n.12.

Our review of the autopsy report in this case shows, as in Crawford, that a certified copy of the

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report was admitted into evidence. Similarly, the autopsy report in this case, as in Leach, was

signed by Dr. Humilier, but not sworn or certified. Defendant has not provided any argument

addressing how a certified copy of the autopsy report is the same as a sworn or certified autopsy

report. In fact, he does not even acknowledge in his brief that it was the certified copy that was

admitted into evidence. It appears defendant's argument is based on a misreading of the

autopsy report, which clearly shows it to be certified copy. Accordingly, we disagree with

defendant's contention that the autopsy report in this case is distinguishable to the report in

Leach. Defendant's plain error claim fails as he has not shown plain error occurred.

¶ 80 Doctrine of Transferred Intent

¶ 81 In defendant's final claim of error, he asks this court to reverse his conviction for

attempted murder. According to defendant, the doctrine of transferred intent as it exists in

Illinois is illogical and inconsistent with other jurisdictions and asks that we disregard Illinois

law in favor of the logic of other jurisdictions. The State maintains that Illinois law is well

settled and argues defendant's contention is meritless.

¶ 82 The due process clause of the fourteenth amendment to the United States Constitution

insures that an accused defendant is not convicted of a crime "except upon proof beyond a

reasonable doubt of every fact necessary to constitute the crime with which he is charged." In

re Winship,

(1970). It is not, however, the function of this court to retry a

defendant when reviewing whether the evidence at trial was sufficient to sustain a conviction.

People v. Hall,

(2000). Rather, our review is focused on "whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the offense beyond a reasonable doubt." People v.

Baskerville,

.

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¶ 83 The doctrine of transferred intent "applies when a third person is injured as a result of a

defendant's assault upon another person." People v. Valentin,

(2004).

"It is well established that in Illinois the doctrine of transferred intent is applicable to attempted

murder cases where an unintended victim is injured." People v. Ephraim,

(2001).

¶ 84 Here, we see no reason to depart from Illinois precedent addressing the doctrine of

transferred intent. We note that defendant only challenges the sufficiency of the evidence of his

attempted murder conviction based on his view that the doctrine of transferred intent as applied

in Illinois is outdated and illogical. Defendant admits that a criminal defendant in Illinois who

did not intend to kill the victim can be convicted of attempted murder if the victim was struck by

bad aim or mistaken identity. Notably, defendant has provided no argument, within the

parameters of Illinois case law on the doctrine of transferred intent, whether the State presented

sufficient evidence to convict him of attempted murder. See Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6,

2013) ("Points not argued are waived and shall not be raised in the reply brief, in oral argument, or

on petition for rehearing."). It follows that defendant's argument fails because we see no reason

to depart from Illinois precedent and because defendant failed to raise any argument challenging

the sufficiency of the evidence within the parameters of Illinois law addressing the doctrine of

transferred intent. Accordingly, we uphold defendant's convictions for first degree murder and

attempted murder.

¶ 85 CONCLUSION

¶ 86 The judgment of the circuit court of Cook County is affirmed.

¶ 87 Affirmed.

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