The opinion of the court was delivered by: Justice Garman
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.
Chief Justice Kilbride dissented, with opinion.
¶ 1 Defendant Curtis Leach was convicted after a bench trial in the circuit court of Cook County of the first degree murder (720 ILCS 5/9-1(a)(2) (West 2002)) of his wife, Latyonia Cook-Leach, and sentenced to 28 years' imprisonment. His conviction and sentence were affirmed on appeal. People v. Leach, 391 Ill. App. 3d 161 (2009). Upon defendant's initial appeal to this court, we vacated the appellate court's judgment and remanded the cause to that court for consideration in light of People v. Williams, 238 Ill. 2d 135 (2010). People v. Leach, 237 Ill. 2d 575 (2010) (supervisory order). After reconsideration, the appellate court again affirmed defendant's conviction. 405 Ill. App. 3d 297. We then allowed defendant's petition for leave to appeal under Supreme Court Rule 315 (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)). We are asked to determine whether admission of the opinion testimony of a pathologist other than the pathologist who performed the autopsy on the victim and of the autopsy report itself violated the rule of Crawford v. Washington, 541 U.S. 36 (2004).
¶ 3 On June 30, 2004, defendant walked into the Harvey, Illinois, police station and reported that he had killed his wife. He later gave a full statement, which was video-recorded, in which he admitted strangling her, but stated that her death had been "an accident." He was charged with intentional murder (720 ILCS 5/9-1(a)(1) (West 2002)) and knowing murder (720 ILCS 5/9-1(a)(2) (West 2002)).
¶ 4 On March 26, 2007, defendant filed a motion in limine, seeking several rulings, including a ruling that would bar the State "from introducing testimony from any Medical Examiner other than Dr. Eupil Choi, the only doctor who performed the autopsy." The motion in limine did not seek to bar the admission of the autopsy report itself. In the motion papers, defendant argued:
"To allow any doctor other than the doctor who performed the actual autopsy to testify would be allowing the State to introduce hearsay evidence. This would be a violation of the defendant's right of confronting his accuser during cross-examination. According to the evidence provided by the State, the only doctor who has examined and performed the autopsy was Dr. Choi. Therefore his conclusion that the cause of death was homicide is his opinion based on his personal examination. To allow another doctor who has never examined the body, performed their own tests or written any reports regarding the victim and the cause of death would be purely hearsay. No other doctor has any personal knowledge as to how the victim died."
¶ 5 At the hearing on the motion in limine, defense counsel did not make additional argument. The State argued that:
"Dr. Arangelovich is an expert in forensic pathology. She has been qualified as an expert here in Cook County in the area of forensic pathology other [sic] 15 times. She is board certified. She has conducted hundreds of autopsies.
Your honor, she is coming in to offer her expert opinion as to the autopsy that Dr. Eupil Choi conducted on the victim, Latyonia Cook, back in June of 2004.
Dr. Choi has retired and left the office. Dr. Arangelovich is not coming in with a Crawford issue because she's not testifying that she, in fact, conducted the autopsy of the victim, Latyonia Cook, in this matter.
However, as an expert she is going to testify that she reviewed the information that Dr. Choi provided with the autopsy report, the protocol, the photographs, and in her expert opinion that she has opinions as to the manner of death and cause of death of Latyonia Cook."
¶ 6 The trial court denied the defendant's motion without comment.
¶ 7 At trial, the court heard testimony from a number of witnesses, including police officers and the victim's mother. For purposes of considering the issues raised in this appeal, the crucial evidence is defendant's videotaped statement and the testimony of Dr. Arangelovich.
¶ 8 Defendant's videotaped statement to the police and a transcript of the statement were entered into evidence without objection by the defense, and the tape was played in open court.
¶ 9 In his statement, he described coming home at 2:35 a.m., after working a 10-hour shift at a recycling facility. His wife and children were sleeping upstairs. He took off his shoes and fixed himself something to eat. After smoking a cigarette, he went upstairs to use the washroom. Then he went back downstairs to smoke another cigarette.
¶ 10 Eventually, he went back upstairs. He checked on the children and entered the bedroom he shared with his wife. She woke up and "looked around and saw it was" him and "she immediately got up" and put on a nightgown. He turned on the lights, but she "stood up and started talking" to him. He lay on the bed, still wearing his work clothes and smoking his cigarette, and listened to her tell him that she "did not appreciate" the way he treated her; he did not "give her enough space to do what she want[ed] to do." He described her complaints as being similar to previous arguments, in which she complained about his "attitudes" and his "not talking to her."
¶ 11 Defendant explained that he just wanted to smoke his cigarette and go to sleep, but that his wife's complaints went on for "a good hour and a half," with him listening and dozing as he lay on his side on the bed. During this time, she was sitting on the side of the bed "Indian style," with her legs folded beneath her. According to defendant, his wife was raising her voice and he was concerned that she would wake the children. They had come into their parents' bedroom in the past when they had heard an argument, but on this night, they did not awaken.
¶ 12 He insisted to her that he was paying attention as she complained that she was "tired of being broke and she's tired of going week to week and not having our bills paid on time." He did not respond to her complaints because he could not get a point across unless he "scream[ed] and holler[ed]," so he just listened as she went "on and on." She was unhappy living "in the projects," and she wanted to know how she was going to get out of the projects "if I can't save no money."
¶ 13 At about 5 a.m., his wife told him that she was not going to go back to sleep and that he "might as well get up" with her and listen to what she was saying. He again told her that he was listening. Then she lit a cigarette, reached over, and burned him on the hand with the lit end. He brushed it off. She laughed, saying "I'm going to talk to you all night whether you like it or not" and telling him he was "not gonna get no sleep."
¶ 14 Although he kept telling her he loved her and that he would change, she did not believe him. He asked if they could just stop the argument so he could get some sleep. He told her that they could talk some more the next day, begging, "Just let me get a little sleep." The argument escalated. He had to "scream when he was talking"; various accusations were exchanged; he continued to suggest that they get some sleep.
¶ 15 They were still on the bed when he put his hands on her. "[S]he didn't want me to touch her so she pushed my hand up off of her and then she started pushing me *** then we got into an altercation where we was wrestling" and "she got to swinging on me." He "pushed her back just to let her know to calm down." She began hitting his face with her open hand because he was falling asleep and then "she started hitting me in my face with her fists" and he "tried to contain her by grabbin her hands." "She got up on her knees" and "was really trying to get on top of me so she can really try to hit me all in my face."
¶ 16 Defendant explained that he "just wanted to make her stop," so he grabbed both of her hands. She broke away and hit him again. Then he was up on his knees and he pushed her down on the bed on her back. He had her right arm pinned, but she was swinging at him with her left. At this point in the narrative, he demonstrated their positions with one of the detectives. He described how he held one of her arms but "she steady hitting me with that one."
¶ 17 Defendant said that "it was over in a matter of seconds," and then "a good three minutes after the fact that, you know what I'm saying, I was choking her. And then she just stopped moving." "It just like another person was in me." "So after I'd say two minutes of just-no, around a good minute and good 15 seconds of straight force up around her neck, she was moving and stuff and then she just stopped moving." He checked her pulse and found none, so he put a pillow under her head and attempted CPR.
¶ 18 When he saw that it was time for the children to get up for summer school, he covered his wife's body. He was crying but did not want his children to see him in tears. He woke them and told them their mother was asleep and he would take them to school. When they were ready, he took them to his wife's mother's house where they regularly stayed before and after school. He went inside the house, but did not speak to anyone except to tell his mother-in-law that the children needed to brush their teeth because they had been out of toothpaste at home.
¶ 19 Defendant said that he went home. He did not go into the bedroom, but when he looked in and saw that his wife was "still in the same position," he "knew she was gone." He got in his car and began to drive around, crying. He called his sister Tiffany, and she asked if he had "killed that girl." He denied it. He told his sister that he and his wife were fighting and she told him to "take all my stuff out to my mom's house."
¶ 20 Eventually, he arrived at his mother's house. His sister Tiffany was there. He did not know what to do. He was too nervous to stand still. His mother was sleeping, but woke when he kissed her. He broke down in tears, telling his mother and sister that he had killed his wife. Then, because he did not want his mother to have "another heart attack," he changed his story to say he and his wife were just fighting.
¶ 21 He left in his car. He wanted to die. When he found a lake, he parked his car and got out because he was contemplating jumping in. He called his older sister Sharon and told her he had killed his wife. She kept him on the phone until eventually "something uplifted me not to do it." He realized that he could repent for killing his wife, but if he killed himself he would go "straight to hell."
¶ 22 Defendant got back in his car and began driving. His phone rang.
It was his brother-in-law, who told him to turn himself in. They agreed to meet at a gas station, where he bought cigarettes and a pop. Then he followed his brother-in-law to the Harvey police station, where they were met by a friend of his brother-in-law, who walked him into the station where he told the police what had happened and was read his rights.
¶ 23 He explained that he was transported to the Robbins police department, because the crime had happened in Robbins. As he was in his cell that night, it "registered" that his wife was gone. He took his pants off, tied them in a knot, and tied it has high as he could on the cell bars. He said that he did not remember what happened next because he "fainted out," but when he woke he realized that God did not want him to die. He expressed sorrow for what he had done: "In the heat of the moment you do things that you don't want to do. *** I know it was wrong but it was an accident."
¶ 24 Dr. Valarie Arangelovich testified that she was a deputy medical examiner in the Cook County medical examiner's office. After defendant renewed his objection to her testimony and his objection was overruled, the parties stipulated to her status as an expert.
¶ 25 She explained that the autopsy of Latyonia Cook-Leach was conducted by Dr. Eupil Choi, who had since retired. She stated that she had reviewed "the autopsy protocol, the toxicology reports, our investigator's report, and photographs" that documented Dr. Choi's external and internal examinations of the body.
¶ 26 She stated that the toxicology report was negative for cocaine or heroin. The victim's blood-alcohol concentration was 0.015, which she noted was well below 0.08, the legal limit for driving.
¶ 27 Asked by the State if she had formed an opinion, based on the review of these materials, as to the cause of death, she answered that she had formed an opinion and that the cause of death was strangulation and the manner of death was homicide. The basis for her conclusion included "marks on the neck," "bloody tinged fluid" in the trachea, and "hemorrhages in both eyes," which "means that there was some pressure placed on her neck which stopped her blood flow from going in and out of the brain."
¶ 28 Dr. Arangelovich testified based on her expertise as a forensic pathologist that an individual "can lose consciousness anywhere from 10 to 30 seconds once that pressure is applied; and then when the brain stops, everything else eventually stops, specifically the heart and the lungs." In "three to six minutes" "irreversible brain death" would occur. Further, the amount of pressure required to stop the flow of blood from the brain is "about 4.4 pounds." "[T]o stop nutrient rich blood from going *** to the brain *** about 11 pounds" of pressure is needed.
¶ 29 Asked whether the findings of the internal and external examination are "documented in the photographs," she answered, "Yes, they are." She then reviewed the autopsy photos and described the images to the court, including the hemorrhages in both eyes, a "rectangular bluish mark" on the right side of the victim's neck, which was referred to in the autopsy report, also another photo showing "multiple abrasions *** adjacent to that mark on the neck." These abrasions were not mentioned by Dr. Choi in the report, but were observed by Dr. Arangelovich from the photographs. She said that these abrasions were consistent with fingernail marks.
¶ 30 She also pointed to a photograph of "purple/red discoloration" in the front of the victim's neck, under her chin, and a photograph of the victim's face with "an abundant amount of white foamy fluid exuding from the nostrils." She explained that "because everything is being constricted here at the neck, the fluid in the trachea can't get down into the lungs, so it builds up, and eventually it's going to be out the path of least resistance, which would be up through the nostrils."
¶ 31 Another photograph showed the inside of trachea, with "the red tinged fluid in the congested lining of the trachea" demonstrating "quite a bit of congestion in this area, which makes sense if there was pressure placed upon the neck, the blood isn't going to be able to be drained from the trachea. So again it's going to build up and eventually come out through her nose."
¶ 32 In conclusion, Dr. Arangelovich reiterated that she did not conduct the autopsy, but that she agreed with Dr. Choi's finding of strangulation.
¶ 33 On cross-examination, the doctor agreed that the autopsy report showed that the victim was 5 feet, 91/2 inches tall and that she weighed 295 pounds. She acknowledged that she had spoken to the State's Attorney before testifying and that she had read the police report. She had not spoken to defendant or viewed his videotaped statement. When defense counsel asked "so you don't know whether the basis that [the defendant] says is the cause of death is correct," she responded that she did not know "what [the defendant] is saying."
¶ 34 On redirect examination, Dr. Arangelovich stated that a person would lose consciousness after 10 to 30 seconds of strangulation, but could recover "depending on what their physical state of their heart and other organs are." Asked whether there were any problems with the victim's heart, she answered "No." Asked whether it would still require three to six minutes for a person with an impaired heart to die from strangulation, she answered "Correct."
¶ 35 On re-cross-examination, she again acknowledged that she had not personally examined the victim's heart and that the victim was obese, which would have been a "risk factor for developing heart disease," but that she was "only 29 years old."
¶ 36 On further redirect examination, she was asked if there was anything in the documented findings that would indicate that the victim could have died "after that 10 to 30 seconds." She answered that there was "nothing to indicate that."
¶ 37 After the State rested its case in chief, it sought to admit 46 exhibits numbered 1 through 47 (the number 30 was inadvertently not used). Defendant objected only to the admission of exhibit number 19, a bandage that was found near the victim's body. The court admitted all of the State's exhibits, including exhibit number 39, the four-page "Report of Post-mortem Examination" and the attached "Results of Toxicologic Analyses," "Medical Examiner Case Report," and diagram of the body.
¶ 38 Defendant then moved for a directed verdict, arguing that the State's evidence failed to prove intent. The State responded that the four-hour delay between the killing and defendant's turning himself in gave him time to fabricate an explanation for his actions. Further, the expert testimony showed it would have taken three to six minutes of pressure from strangulation to result in the victim's death. Thus, the State argued, intent could be inferred from defendant's "keeping his hands around her throat" for that period of time.
¶ 39 The trial court denied the motion. Defendant chose not to testify.
¶ 40 In closing, the State asked the court to infer defendant's intent from his actions. During the altercation, he did not merely restrain his wife's arms to prevent her from hitting him. He put his hands around her throat and strangled her. Although he claims that her death was an accident, he did not call 9-1-1. Instead, he took his children to his mother-in-law's house as if it were a normal day. He did not notify the police of his wife's death until he was convinced by a family member to turn himself in. Turning to the expert testimony, the State argued that the victim would have been unconscious after 10 to 30 seconds of strangulation and would not have been able to fight back. Thereafter, in the at least three minutes it would have taken to cause her death, defendant would have known that his continuing to strangle her would create a grave risk of death or bodily harm.
¶ 41 Defense counsel argued that the crime scene was entirely consistent with defendant's version of events. The small amount of blood on the victim's mouth could have been the result of his trying to administer CPR. Counsel stated that he was "not contesting that the reason Latyonia Cook is dead is because Curtis choked her." Rather, he argued, even though defendant's actions were likely to cause death or great bodily harm, he did not intend to kill her and he did not know that his actions could have caused such harm. At most, he acted recklessly after she incited a fight and would not let it drop. He was defending himself and, at most, was guilty of involuntary manslaughter.
¶ 42 In rebuttal, the State asked the court to reject any claim of self-defense, which would require that the defendant admit his intent to kill to defend himself. Because defendant never claimed that he was in fear for his life or that his wife tried to kill him, self-defense is not available to justify his actions.
¶ 43 The State also rebutted defendant's claim of mutual combat, arguing that mutual combat necessarily ends when one party withdraws. Even if the couple were engaged in mutual combat, she "withdrew" when she lost consciousness 10 to 30 seconds after he began to strangle her. His continuing to strangle her beyond that point was unjustified and unnecessary.
¶ 44 Finally, the State argued that there was no evidence of recklessness-that there is nothing reckless about placing one's hands around another's throat and choking that person until he or she is dead. Manual strangulation is "no accident." One might accidentally shoot or stab someone, because it takes only a second to do fatal harm, but one cannot accidentally strangle another person for three to six minutes, after that person is unconscious, without choosing to continue. "[H]e wanted her dead, and he wanted her dead for every second he kept his hands clamped around her throat."
¶ 45 The trial court found that the State did not meet its burden as to count I, intentional murder (720 ILCS 5/9-1(a)(1) (West 2002)), but found defendant guilty beyond a reasonable doubt of count II, knowing murder (720 ILCS 5/9-1(a)(2) (West 2002)), stating:
"[T]he evidence is clear that the length of time that it had to be for the choking, that you knew that such strangling with your hand[s] created a strong probability of death or great bodily harm.
I don't know if it is 15 seconds or three minutes or six minutes.
I re-listened to your statement and an accident happens with a gun, an accident happens with a knife, an accident happens with a car, an accident ...