People v. Conway

2023 IL App (1st) 172090-U

Opinion

2023 IL App (1st) 172090-U SIXTH DIVISION

December 15, 2023

No. 1-17-2090

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 15 CR 19055 ) JASON CONWAY, ) Honorable ) Charles P. Burns, Defendant-Appellant. ) Judge Presiding.

JUSTICE C.A. WALKER delivered the judgment of the court. Justices Hyman and Tailor concurred in the judgment.

Held: On remand from the Illinois Supreme Court, we reverse defendant Jason Conway’s conviction and remand for a new trial because the testimony of the State’s gunshot residue expert violated Conway’s rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution.

¶1 After a bench trial, the circuit court found defendant Jason Conway guilty of armed habitual

criminal (720 ILCS 5/24-1.7 (West 2014)) and sentenced him to 14 years’ imprisonment. On direct

appeal, Conway raised four claims: (1) the evidence was insufficient to sustain the verdict, (2) the No. 1-17-2090

verdict should be reversed because the trial judge evidenced bias in favor of police testimony, (3)

a Confrontation Clause violation, and (4) the court erred regarding his posttrial claim of ineffective

assistance of counsel pursuant to People v. Krankel, 102 Ill. 2d 181 (1984). We found the evidence

was sufficient to sustain the verdict, but reversed and remanded based on Conway’s theory of

judicial bias. People v. Conway, 2021 IL App (1st) 172090. The Illinois Supreme Court affirmed

in part and reversed in part in People v. Conway, 2023 IL 127670, affirming our finding regarding

the sufficiency of the evidence, but reversing the finding of bias, and remanded to this court for

consideration of Conway’s Confrontation Clause and Krankel claims. On remand, we find the

testimony of the State’s gunshot residue expert violated Conway’s Confrontation Clause rights,

and, accordingly, reverse and remand for a new trial.

¶2 I. BACKGROUND

¶3 We include only those facts necessary to resolve Conway’s remaining claims. The below

facts were relayed in our first opinion, People v. Conway, 2021 IL App (1st) 172090, unless

otherwise indicated:

“Around noon on November 2, 2015, Chicago police officer Donald Story and several

other officers entered a house on Monroe Street in Chicago. They encountered several

Black men and women in the house. Officers arrested Conway on the first floor and found

car keys in his pocket. Story went to the basement, where he saw a purse strap hanging

between two mattresses. He pulled the strap and found two guns in the purse. Police

charged Conway with violating the armed habitual criminal statute. 720 ILCS 5/24-1.7

(West 2014).” Id. ¶ 3.

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“Defense counsel filed a motion to suppress the evidence seized in the warrantless search

of the house on Monroe Street. The trial court denied the motion, in part because Conway

did not live in the house and therefore had no privacy rights there.” Id. ¶ 4.

“At the bench trial, Story testified that on November 2, 2015, he stopped his car on Monroe

Street, and from 150 feet away, he saw a man shoot at a moving car. After the car sped off,

the shooter, who wore a blue hoodie, opened the door of a car on the street and reached

inside before going into the house on Monroe Street. A number of officers responded to

Story’s call for backup. All went into the house the shooter had entered. Story saw the blue

hoodie on the floor next to Conway. The car keys retrieved from Conway’s pocket fit the

car into which Story saw the shooter reach. Story identified Conway in court as the

shooter.” Id. ¶ 5.

“Police found seven spent shell casings on the ground in front of the house. A firearms

expert testified that the casings came out of one of the guns found in the purse Story found

in the basement of the house on Monroe Street.” Id. ¶ 6.

“An officer swabbed Conway’s hands and the blue hoodie and sent the swabs to the lab for

testing. Scott Rochowicz, an expert on trace chemistry, testified that he did not test the

swabs, but he reviewed the notes Robert Burke made when Burke tested the swabs. Burke

had found gunshot residue in one sample labeled as coming from the hoodie and in the

sample labeled as control, but not in the second sample from the hoodie and not in either

sample from Conway’s hands. Rochowicz testified:

‘A. [Burke] made notes that it looks like the left back sample along with the

control sample were not used in the manner in which they were submitted.

Q. And what does that mean?

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A. Basically it means he believes that those samples may have been switched

during their use.’ ” Id. ¶ 7.

“Rochowicz agreed with Burke’s conclusion that the hoodie bore gunshot residue and

Conway’s hands did not.” Id. ¶ 8.

“Defense counsel did not object to testimony about the gunshot residue test. The court

elicited Rochowicz’s clarification that he did not test the samples, but in accord with

standard peer review, he read Burke’s notes regarding Burke’s testing.” Id. ¶ 9.

¶4 On remand, we further note that Rochowicz testified at trial that the Illinois State Police

(ISP) peer review process requires that “once the case has actually been analyzed and a file along

with report and notes has been generated, that report and notes will be given to another qualified

examiner to review,” and that examiner then reviews those materials “to ensure that the procedure

manual has been followed as well as all of the conclusions that are issued in the reports can be

verified or validated by the notes.” Rochowicz’s involvement in this matter came only through the

peer review process.

¶5 Our prior opinion continued:

“The State presented evidence that Conway had two prior convictions for Class 1 felonies

of possession and delivery of controlled substances.” Conway, 2021 IL App (1st) 172090,

¶ 10.

“The court noted that the case rested largely on the credibility of Story’s eyewitness

identification of Conway as the shooter. The court stated:

‘The officer, who is a trained police officer, is not a civilian, testified that he was

in a position to immediately react when the shots were fired and saw the shots

being fired.***

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*** The officer identified it specifically with regard to the sweatshirt, and

apparently the sweatshirt does, as I stated earlier, have some tricomponent parts

that are indicative of coming into contact with gunpowder residue.***

I do find that the officer was not startled, he was not in a situation where his

perception might have been affected or that he might have been distracted. Again,

he is a professional. He is a law enforcement official, which I think is something

that I can take into consideration as compared to an individual who’s never had any

such training and the dangers of false identification become more concerning then

with a police officer. That is not a general statement. That is specifically to this

officer. I believe his testimony is clear, credible, and convincing with regard to

this.’ ” Id. ¶ 11.

“The circuit court found Conway guilty of violating the armed habitual criminal statute. In

allocution before sentencing, Conway said:

‘[Defense counsel] lied to you, your Honor. *** [W]e supposed to be here to

hear the motion to reconsider [the denial of the motion to suppress]. They made

me go to trial. We wasn’t even prepared for trial, your Honor.

*** I don’t know the reason I was pushed into trial. I didn’t get the chance to

send nobody out to get anything done, your Honor.’ ” Id. ¶ 12.

“Conway said his attorney told him that the judge would reconsider the motion to suppress

during the trial. Conway told his attorney the name of the owner of the house on Monroe

Street. The court asked counsel what he did with the information, and the attorney

answered: “Judge, the fact that some lady owned the house I did not think was relevant as

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to whether he was the gentleman that fired the gun outside the house and ran inside of the

house.” Id. ¶ 13.

“Conway explained that he expected that, on the motion for reconsideration of the denial

of the motion to suppress, he could assert that he had a right to privacy as a guest in his

friend’s home. Counsel responded:

‘I would rather consider it after a conviction because for all we know, we

wouldn’t have to do a motion to reconsider if the court found him not guilty. It

would be moot.

So now we file it at the end, hoping the court changes his mind and vacates the

guilty.’ ” Id. ¶ 14.

“The circuit court found that counsel had not provided deficient representation and the

court would have denied the motion to reconsider if counsel had made such a motion. The

court sentenced Conway to 14 years in prison. Conway now appeals.” Id. ¶ 15.

¶6 We further note on remand that during the Krankel inquiry, the circuit court asked Conway

if he informed counsel of any additional witnesses he might want to call, and Conway answered

affirmatively. Conway continued that he told counsel of two witnesses, Dion Richardson and the

“lady” who owned the house. Counsel acknowledged he received this information, and informed

the court that after doing so, he “indicated that to Mr. Conway, that’s very interesting but not

germane. You have to say that he wasn’t the guy. I don’t care who owns the house, he is not the

guy that [is] running in there.” Conway explained it was a previous attorney, not his trial counsel,

who he believed provided ineffective assistance.

¶7 II. ANALYSIS

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¶8 On remand from the Illinois Supreme Court, we now address Conway’s arguments that

(1) Rochowicz’s testimony violated his rights under the Confrontation Clause of the United

States Constitution (U.S. Const., amend VI), and (2) the circuit court erred in finding he did not

establish possible neglect during the Krankel hearing, or, alternatively, the court’s Krankel

inquiry was insufficient.

¶9 We begin with the Confrontation Clause claim. Conway acknowledges that he did not

preserve this claim through a timely objection at trial and inclusion in a posttrial motion. See

People v. Sebby, 2017 IL 119445, ¶ 48. He contends, however, that we may reach the claim on

plain error review.

¶ 10 A reviewing court may consider a forfeited claim on appeal if it constitutes plain error.

Id. Plain error review is appropriate where a clear or obvious error occurred at trial, and either

(1) the evidence was so closely balanced that the error alone threatened to tip the scales of justice

against the defendant, or (2) the error was so serious that it denied the defendant his right to a fair

trial, regardless of the closeness of the evidence. Id. We must first determine whether a clear or

obvious error occurred. Id. ¶ 49.

¶ 11 Conway claims that the admission of Rochowicz’s testimony constituted a clear and

obvious error because it denied him the right to confront the witnesses against him, guaranteed

by both the United States Constitution (U.S. Const., amend. VI) and Illinois Constitution (Ill.

Const. 1970, art. I, § 8). The United States Supreme Court established in Crawford v.

Washington, 54 U.S. 36 (2004), that under the Confrontation Clause, testimonial hearsay is

inadmissible unless the declarant is unavailable, and the defendant had a previous opportunity to

cross-examine the declarant regarding the statements at issue. Crawford, 54 U.S. at 68-69.

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¶ 12 Following Crawford, the Court has clarified the application of this principle to scientific

reports in three opinions. First, in Melendez-Diaz v. Massachusetts, 557 U.S. 305, 307, 311

(2009), the Court held that three certificates of analysis identifying the substance at issue as

cocaine, each sworn to before a notary public by an analyst, were testimonial statements for

purposes of the defendant’s criminal trial for drug trafficking. The Court explained that the

certificates were equivalent to an affidavit affirming that the substance was cocaine, an official

statement that was testimonial in nature because it would have been clear to an objective witness

that the statement was made for use at a later trial. Id. at 310-11. The Court summarized, “under

our decision in Crawford, the analysts’ affidavits were testimonial statements, and the analysts

were “witnesses” for the purposes of the Sixth Amendment.” Id. at 311.

¶ 13 Next, in Bullcoming v. New Mexico, 564 U.S 647 (2011), the Court considered whether,

“[T]he Confrontation Clause permit[s] the prosecution to introduce a forensic laboratory report

containing a testimonial certification, made in order to prove a fact at a criminal trial, through the

in-court testimony of an analyst who did not sign the certification or personally perform or

observe the performance of the test reported in the certification.” Bullcoming, 564 U.S. at 657.

The Court ruled that the report could not be introduced in this manner, holding that such

“surrogate testimony” is improper because “[t]he accused’s right is to be confronted with the

analyst who made the certification, unless that analyst is unavailable at trial, and the accused had

an opportunity, pretrial, to cross-examine that particular scientist.” Id. at 652. The Court

explained that “surrogate testimony *** could not convey what [the testing scientist] knew or

observed about the events his certification concerned, i.e., the particular test and testing process

he employed,” or reveal “lapses or lies” in the testing scientist’s account. Id. at 661-62. The

Court also stressed that “A document created solely for an evidentiary purpose *** made in aid

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of a police investigation, ranks as testimonial,” and noted that the fact the report was “unsworn”

was not dispositive of its nature. (Internal quotation omitted). Id. at 664. Regarding surrogate

testimony, the Court explained that “New Mexico could have avoided any Confrontation Clause

problem by asking [the surrogate] to retest the sample, and then testify to the results of his retest

rather than to the results of a test he did not conduct or observe.” Id. at 666.

¶ 14 Next, in Williams v. Illinois, 567 U.S. 50 (2012), a plurality of the Court found that

testimony from an ISP forensic scientist that a DNA profile developed by the ISP matched a

DNA profile developed by a third party (Cellmark, who provided its results in a report) was

admissible because the testimony regarding the Cellmark report was not introduced for the truth

of the matter asserted, but only to reveal the basis for the expert’s opinion that the profiles

matched. Williams, 567 U.S. at 57-58. The plurality also noted that as a second, independent

basis for admissibility, the Cellmark report was non-testimonial because it “was produced before

any suspect was identified,” and thus “was sought not for the purpose of obtaining evidence to be

used against [a] *** targeted individual.” Id. at 58, 84. Justice Thomas’s solo concurrence

explained that he only concurred in the judgment, and on the basis that the Cellmark report was

insufficiently formal to be considered testimonial, citing that “it is neither a sworn nor a certified

declaration of fact.” Id.at 104. The minority four justices, in a Justice Kagan opinion, found the

situation “functionally identical” to Bullcoming, and contended the Cellmark report was

testimonial both because it actually was introduced for the truth of the matter asserted, not

merely the basis of an expert opinion, and because “the report is, in every conceivable respect, a

statement meant to serve as evidence in a potential criminal trial.” Id. at 124, 126, 138.

¶ 15 In People v. Leach, 2012 IL 111534, the Illinois Supreme Court characterized the

plurality and dissent in Williams as creating two separate “primary purpose” tests for courts to

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use when considering whether a scientific report is testimonial—the plurality’s view that “the

primary purpose” must be to accuse a specific person, and the dissent’s view that the primary

purpose can be, more generally, to provide evidence for a future trial. Leach, 2012 IL 111534,

¶¶ 120-21.

¶ 16 Finally, in People v. Lewis, 2019 IL App (1st) 160864, another panel of this court

helpfully synthesized the above precedent in a situation similar to this matter. There, the court

considered the testimony of a forensic scientist from the ISP on the results of a firearm

identification examination performed by a different scientist, but which the witness reviewed as

part of the ISP’s quality assurance program. Lewis, 2019 IL App (1st) 160864, ¶ 17. The witness

agreed with the testing scientist’s conclusions after reviewing the report. Id. The Lewis court

decided this was testimonial evidence, reasoning “the report was prepared after [defendant] was

arrested and for the primary purpose of obtaining evidence against [defendant],” and during the

witness’s testimony, “it was clear he was presenting [the testing scientist’s] conclusions and that

all he could offer was that he agreed with them,” had not been involved first-hand in the testing

at all, and did not perform subsequent testing himself. Id. ¶ 37. The Lewis court concluded, “this

was surrogate testimony that violated [Lewis’s] sixth amendment right to confront the witness

who had [performed the test.]” (Internal quotation omitted.”) Id. ¶ 37. It rejected the State’s

argument that the surrogate offered his own opinion because the “crux” of his testimony was “to

present the conclusions of the firearm identification report.” Id. ¶ 38. Finally, the court noted that

under Leach, the report at issue was created with both the primary purpose of use as evidence

generally, and to target Lewis specifically. Id. ¶ 44.

¶ 17 Here, the record shows Rochowicz did not participate in the original testing of the GSR

samples, or perform new testing before he testified. Instead, he reviewed Burke’s report as part

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of the ISP peer review process, then testified regarding Burke’s conclusions at Conway’s trial.

Burke’s testing took place after Conway’s arrest, and there is no indication that Burke was

unavailable to testify or that Conway had the opportunity to cross-examine Burke in a previous

proceeding.

¶ 18 On this record, we find that it was a clear or obvious error to admit Rochowicz’s

testimony regarding Burke’s testing because such testimony violated Conway’s sixth amendment

right to confront the witnesses against him. This is a classic surrogate testimony situation which,

as described in Bullcoming and confirmed by this court in Lewis, involves testimonial hearsay if

the witness only relays the original testing scientist’s conclusions, then testifies that he agrees

with them. Bullcoming, 564 U.S. at 661; Lewis, 2019 IL App (1st) 160864, ¶¶ 37-38. Like the

witness in Lewis, Rochowicz did not offer his own opinions on the samples collected in this

matter, formed from actual testing or independent consideration; instead, he only testified about

the testing Burke performed, and affirmed he agreed with Burke’s conclusions. Thus, Rochowicz

did not testify as to any independent expert opinions, which could potentially render the report

admissible for the nonhearsay purpose of explaining the bases for those opinions (if the Williams

plurality is to be followed on the point, which we need not decide). Williams, 567 U.S at 58, 84.

Moreover, there is no issue as to the testimonial nature of Burke’s statements, as the statements

qualify under either conception in Williams —Burke’s testing took place after Conway was

identified as the suspect (satisfying the plurality’s standard (Williams, 567 U.S. at 84)), and the

testing was performed with the goal of generating evidence to use at trial against Conway

(satisfying the dissent’s (Id. at 138 (Kagan, dissenting))). See Leach, 2012 IL 111534, ¶ 120-121;

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Lewis, 2019 IL App (1st) 160864, ¶¶ 43-44. 1 Thus, the statements in Burke’s report are

testimonial regardless of whether they are analyzed for the primary purpose of accusing a

specific suspect or developing evidence to use at trial more generally.

¶ 19 The State argues that Burke’s report is admissible for the nonhearsay use of explaining

the bases for Rochowicz’s independent expert opinions, citing People v. Nelson, 2013 IL App

(1st) 102619. There, the court explained that the testifying witness, though he was not the only

scientist involved in the DNA testing at issue, was sufficiently involved in the testing process

such that he could offer his own expert opinions regarding the testing. See Nelson, 2013 IL App

(1st) 102619, ¶ 68 (expert not a surrogate where he handled the materials at issue, analyzed the

data, and authored the report at issue). Setting aside that the Nelson court did not even address

whether a non-testifying expert’s report can be admitted for the nonhearsay use for which the

State advocates, this argument fails because it is belied by the record. Rochowicz specifically

clarified that he was not involved in Burke’s original testing, and did no re-testing or

independent review of the actual evidence. The Lewis court addressed a nearly identical scenario,

and held that when a witness repeats another’s conclusions then testifies that they agree, this is

Bullcoming-style surrogate testimony. Lewis, 2019 IL App (1st) 160864, ¶¶ 37-38. Because

Rochowicz only reviewed Burke’s notes then testified that he agreed with Burke’s conclusions,

he did not testify to his own expert opinions about the GSR evidence in Conway’s case,

defeating the State’s argument.

1 We acknowledge that in People v. Barner, 2015 IL 116949, the supreme court utilized the Williams plurality’s conception, along with Justice Thomas’s concurrence, in finding a report non- testimonial. Barner, 2015 IL 116949, ¶¶ 60-64. We do not believe, however, that Barner invalidates the Lewis court’s conception that a report which would be testimonial under both the Williams plurality’s and dissent’s tests is properly found to be testimonial, as Barner did not set aside (or even criticize) Leach.

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¶ 20 Having found that a clear or obvious error occurred, we must determine if it is plain error.

We begin with the first prong, and must determine if the evidence is so closely balanced that the

error threatened to tip the scales against Conway. Sebby, 2017 IL 119445, ¶ 48. To determine if

evidence is closely balanced, the reviewing court, “must evaluate the totality of the evidence and

conduct a qualitative, commonsense assessment of it within the context of the case,” which

“involves an assessment of the evidence on the elements of the charged offense or offenses,

along with any evidence regarding the witnesses’ credibility.” Id. ¶ 53.

¶ 21 The State argues the evidence was not closely balanced because the eyewitness testimony

and reasonable inferences from other circumstantial evidence left no doubt of Conway’s guilt,

citing his possession of the vehicle’s keys, proximity to the sweatshirt, and the fact the firearm

was located in the residence in which Conway was arrested.

¶ 22 We disagree, perhaps predictably, as we have already expressed our view that the

evidence in this case was “closely balanced.” Specifically, in our prior opinion, we stated:

“Conway emphasizes that Story saw the shooter for only a few seconds from 150 feet away

and, at that distance, Story could not have seen the shooter's face clearly. Story saw several

Black men in the house the shooter entered. Story did not explain what distinguished those

men from the shooter. Because of the time it took for back up to arrive, the shooter could

have hidden the gun in the purse, taken off the hoodie, and left by the back door without

Story seeing him depart.” Conway, 2021 IL App (1st) 172090, ¶ 19.

“Based on a distant eyewitness identification, the State presented a weak case, and the

corroborating evidence presents some problems. According to the State, the shooter

thought clearly enough to take off the hoodie, wash the gunshot residue off his hands, and

hide the gun between mattresses in the basement, but he sat right next to the hoodie and

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failed to wash the gunshot residue off the hoodie. While we find the State’s

characterization of the shooter odd, we find that the discovery of the gun, Conway’s

proximity to the hoodie, and the testimony that the shooter reached into the car for which

Conway held the keys suffices as corroboration of the eyewitness identification. We find

the evidence closely balanced but sufficient to support the conviction.” Id. ¶ 20.

¶ 23 We maintain this reasoning here. Because the evidence was closely balanced, the clear

error of admitting Rochowicz’s testimony in violation of Conway’s Confontation Clause rights

constituted first-prong plain error, and accordingly we vacate his conviction and remand for a

new trial. We note that there are no double jeopardy issues on remand because, as explained in

our previous opinion, the evidence was sufficient to sustain the conviction despite being closely

balanced, a view the Illinois Supreme Court specifically affirmed. Id.; Conway, 2023 IL 127670,

¶¶ 20-21; People v. Bass, 2021 IL 125434, ¶ 27. We further note that because we remand based

on Conway’s Confrontation Clause claim, we do not address the substance of his Krankel claim.

¶ 24 As a final note, we acknowledge that the parties discussed the Confrontation Clause issue

in the context of harmless error in the briefing. While it is clear that for this unpreserved error,

plain error review is appropriate (as Conway argues in his reply brief), the parties’ discussion of

this issue gives us occasion to briefly acknowledge the potential for confusion on how first-prong

plain error and harmless error analysis interact. Specifically, the supreme court’s cases could be

read to diverge on whether the proper analysis is (1) where a clear or obvious error occurred and

the evidence was closely balanced, reversal is automatically appropriate, regardless of whether

that clear or obvious error was of the type that could affect the outcome of the case (See Sebby,

2017 IL 119445, ¶¶ 68-77: “The only question in a first-prong case, once clear error has been

established, is whether the evidence is closely balanced”) or (2) for reversal, the evidence must

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be closely balanced and the clear or obvious error was one that could have affected the outcome

(See People v. Jackson, 2022 IL 127256, ¶ 23 (“errors reviewable under the first prong of the

plain error rule are the type of errors that are subject to harmless error analysis, and a defendant

must establish prejudice resulting from the error to excuse his forfeiture of such an error”)).

Sebby attempted to bridge this gap by citing People v. Herron, 215 Ill. 2d 167, 187 (2005), but

the court’s language in Jackson suggests the gap remains. See Sebby, 2017 IL 119445, ¶¶ 68-69;

Jackson, 2022 IL 127256, ¶ 23. While we need not resolve the issue now, we note that this

apparent tension could cause divergent results moving forward.

¶ 25 III. CONCLUSION

¶ 26 The admission of Rochowicz’s testimony constituted first-prong plain error, and as such,

Conway’s conviction is reversed, and we remand for a new trial.

¶ 27 Reversed and remanded.

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