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FIRST DIVISION
May 3, 2004

Following a jury trial, defendant Cesar Munoz was convicted of first-degree murder of hiscommon law wife and sentenced to 45 years in prison. On appeal, defendant contends that: (1)the trial court's in limine ruling barring evidence of the wife's suicidal ideation violated hisconstitutional rights and, because that error was not harmless, his conviction must be reversed;(2) the trial court committed reversible error by allowing the State's pathologist to invade theprovince of the jury by stating her opinion beyond a reasonable doubt; (3) the trial courtcommitted a prejudicial constitutional error when it prohibited cross-examination of the State'sexpert witness on matters that directly affected the reliability of that witness's expert opinion; and(4) his sentence is excessive. For the reasons stated below, we reverse the judgment of the trialcourt.

BACKGROUND

On September 8, 1997, defendant's common law wife, Magdaliz Rosario (Magdaliz), wasfound dead in their apartment of a gunshot wound to the head. Defendant was charged with hermurder. This case was tried twice. It first proceeded to trial on May 3, 2000, with the Statemaintaining that the manner of Magdaliz's death was a homicide, while defendant maintained thatit was a suicide. The first jury to hear the case was unable to reach a verdict, so a mistrial wasdeclared on May 7, 2000. A second trial commenced on November 2, 2000, and defendant wasagain tried by a jury. This time, the jury returned a verdict finding defendant guilty of first-degreemurder. The trial judge sentenced defendant to 45 years in prison.

The following facts were adduced at the second trial. Defendant's friend, John Flores,⁽¹⁾testified that he was living with defendant and Magdaliz in their apartment in Chicago. Flores andMagdaliz were having an affair which they hid from defendant. On September 8, 1997, Florestook Magdaliz to a job interview at Luna Security, where he was employed. While Flores waswaiting for Magdaliz outside the Luna Security office, defendant pulled up in a car and askedwhere Magdaliz was. Flores told defendant that Magdaliz was inside filling out an employmentapplication. Defendant waited for Magdaliz, and approximately 20 to 25 minutes later, she lefther interview and drove back to the apartment with defendant. According to Flores, Magdalizwas happy that she got a job at Luna Security.

Flores drove back alone in his car and arrived at their apartment building before defendantand Magdaliz. Flores briefly spoke to a friend he saw outside the apartment building and then heand his friend left to purchase cigarettes. Before he left, Flores saw defendant and Magdaliz enterthe apartment building, apparently on their way to their second-floor apartment. Defendant didnot appear to be angry when Flores saw him enter the apartment building with Magdaliz.

Chicago police officer Norbert Rivera testified that he responded to a call of a shooting,arrived at the apartment building in question and proceeded to the second-floor apartment. Officer Rivera made his way to the top of the stairs and saw a number of people in the hallway. Magdaliz was lying on the floor with a large amount of blood around her. Officer Rivera thenasked where her husband was, and defendant's cousin, John Barrios, took Officer Rivera acrossthe street to Barrios' apartment. There, Officer Rivera saw defendant, whom Barrios identified asMagdaliz's boyfriend or husband.

Officer Rivera asked defendant what had happened. Defendant told him that he got into afight with his wife and she ran into their bedroom, closed the door, and then he heard a shot. Defendant further told Officer Rivera that he forced the door open, entered the bedroom, andattempted to take Magdaliz out of the apartment to get her medical assistance. Defendant thencalled 911. Officer Rivera next asked defendant where the gun was. He repeated that questionseveral times before defendant responded. Defendant stated that he threw the gun into a garbagecan. Officer Rivera and defendant left Barrios' apartment and went to the alley behind defendant'sapartment building where the garbage cans were located. Defendant pointed out the garbage cancontaining the gun and moved the top bag of garbage out of the way so that Officer Rivera couldsee the gun, which was underneath the top bag of garbage and approximately a foot or a foot anda half down in the can. Officer Rivera left the gun there and told other officers at the scene towait for evidence technicians. Defendant was arrested and transported to Area 5 policeheadquarters.

Chicago police department evidence technician (ET) Robert Davie testified that he arrivedat the apartment building in question and was directed to the garbage cans located in the alleynext to the building. ET Davie photographed the gun and took it out of the garbage can. He thenwent to defendant's apartment to photograph the crime scene. Upon arriving at the apartment,ET Davie saw Magdaliz lying face down in the exterior hallway. In the living room, there was atrail of blood on the floor and what looked like drag marks leading from the bedroom through theliving room into the hallway. ET Davie also observed a large amount of blood on the mattress inthe bedroom.

Chicago police department detective (Det.) Edwin Dickinson testified that he interrogateddefendant at Area 5 police headquarters. According to Det. Dickinson, defendant admitted thathe was jealous of Flores and, in his anger, made a mess of the apartment before leaving for LunaSecurity. Defendant also admitted to picking up Magdaliz from Luna Security. On the wayhome, defendant gave Magdaliz a driving lesson and allowed her to drive. Defendant stated thatonce at home, they put two of their three children to bed for a nap and defendant started toprepare a bath for their other child. It was then that Magdaliz ran into their bedroom and lockedthe door behind herself. Defendant told Det. Dickinson that he went to the door and tried toopen it using a nail. At that point, defendant heard a gunshot and he broke the door down. Hesaw Magdaliz on the bed, propped up against the wall, bleeding from her face, holding a gun inher hand. Defendant got on the bed, took the gun away from Magdaliz and began to drag hertoward the stairs. Defendant told Det. Dickinson that he tossed the gun out of the window. When defendant got to the top of the stairs, he screamed for help. Defendant's family lived nextdoor, and his father and brother came to the apartment. Defendant then sent his brother to callthe police, as there was no phone in the apartment.

Det. Robert Rutherford testified that he interrogated defendant after Det. Dickinsoncompleted his interrogation. Defendant recounted a similar version of events to Det. Rutherford. Det. Rutherford, who had been to the crime scene prior to interviewing defendant, told defendantthat he did not believe him and confronted defendant with the fact that neither the door nor thedoorframe of the bedroom was damaged, and the gun was lying in the garbage can. Det.Rutherford then left the interview room. He later returned and spoke with defendant again. Thistime, defendant told Det. Rutherford that he had used a nail to unlock the door and that he didnot toss the gun out of the window--rather, he walked over to the window, looked out anddropped the gun into the garbage can.

Later, defendant was interrogated again. According to Det. Rutherford, at defendant'srequest, a Spanish-speaking detective, Det. Renaldo Guevara, joined Det. Rutherford.⁽²⁾ This time,defendant told the detectives that, as he was putting one of their children to bed, he could seeMagdaliz in their bedroom holding a gun up in the air. Defendant kept this gun in the dresserdrawer. Defendant stated that he asked Magdaliz what she was doing, and she replied, "Youdon't have to worry about it." Defendant stated that he then went into the bedroom and began towrestle with Magdaliz over the gun. The gun was cocked. As they were struggling over the gun,defendant twisted Magdaliz's arm, and the gun ended up pointing at her face when it went off.

At trial, the parties stipulated that both the gun recovered by ET Davie and one bullet,recovered from Magdaliz's head by medical examiner Dr. Nancy Jones, were sent to the IllinoisState Police Forensic Crime Lab. The trial court then found Joseph Thibault, who works for theIllinois State Police Forensic Crime Lab, to be an expert in the field of firearms examination. Thibault testified that after comparing and testing the two items, he concluded that the gunrecovered from the garbage can outside the apartment building fired the bullet recovered fromMagdaliz's head. A fingerprint expert, Cynthia Engelking-Prus, testified that there were no printson the gun that were suitable for comparison. A forensic scientist, Robert Berk, testified thatMagdaliz's left hand tested positive for gunshot residue. He also testified that the gunshot residuetests performed on defendant were inconclusive.

Dr. Nancy Jones of the Cook County medical examiner's office (Medical Examiner'sOffice) was accepted by the trial court as an expert witness in the field of forensic pathology. Dr.Jones testified that she performed an autopsy on Magdaliz on September 9, 1997. During theautopsy, Dr. Jones observed that Magdaliz's wound showed evidence of a near contact rangefire--there was a charred or burned abrasion around the wound caused by hot gasses that cameout of the barrel of the gun at the same time the bullet did, burning the skin, and there wasgunpowder present around the wound. Dr. Jones stated that the bullet entered through the lip,and followed an upwards, slightly left to right trajectory. Dr. Jones stated her opinion that thecause of death was a gunshot wound to the face.

Regarding the manner of death, Dr. Jones stated that it is determined on the basis of thecircumstances surrounding the death, as well as the autopsy findings. Dr. Jones testified that inmaking her determination as to the manner of Magdaliz's death, she considered the informationshe received in a written report from an investigator from the Medical Examiner's Office,photographs of the scene, the location and the appearance of the gunshot wound of entry,information that she was given by the Chicago police department concerning the circumstances ofdeath, as well as her experience and expertise in dealing with cases of that sort. Dr. Jones statedseveral times her opinion that, to a reasonable degree of forensic, medical and scientific certainty,the manner of death was homicide. Dr. Jones stated that, although the wound was close contactrange, the location and appearance of the wound were not indicative of suicide. Dr. Jones alsofound it significant that the gun was moved, and there was evidence that Magdaliz was draggedface downward, with a large portion of her body dragging along the floor. On redirectexamination of Dr. Jones, the following colloquy took place:

"[QUESTION:] If you have any reasonable doubt as to whether a case is ahomicide or a suicide--if you have any reasonable doubt as to if a case is ahomicide, do you rule it a homicide?

[DEFENSE:] Objection.

THE COURT: You can answer.

[DR. JONES:] No, I do not."

The defense subsequently moved for a mistrial. That motion was denied. The State rested afterDr. Jones testified.

Defendant's brother, Nicky Munoz (Nicky), testified that he and defendant's parents livedin a house next to the building where defendant and Magdaliz lived. On the day Magdaliz died,Nicky loaned defendant his car. Nicky was at home when Magdaliz knocked on his door andreturned his car keys. According to Nicky, she did not appear upset. At the same time, Nickybriefly observed defendant stand in front of his apartment building. Defendant did not seemupset or angry. Approximately 20 minutes later, Nicky heard defendant scream, "Help me. Helpme. Maggie shot herself. She shot herself. Help me." Nicky immediately ran to defendant'sapartment. When he arrived, he saw Magdaliz lying on the floor at the top of the stairs anddefendant standing nearby "like frozen." Nicky ran back to his home and called 911.

Defendant's father, Cesar Munoz, Sr. (Cesar), testified that he also heard defendantscreaming for help, and he too ran to the apartment. Cesar saw Magdaliz lying on the floor at thetop of the stairs, and he then ran back to his home to call 911. Nicky was already on the phonewith the 911 operator. Cesar took the phone from Nicky and told the operator to send anambulance.

Defendant's cousin, John Barrios, testified that he lived across the street from defendantand Magdaliz. Barrios heard loud screaming coming from defendant's apartment and ran up thestairs to see what was wrong. He saw Magdaliz lying on the floor at the top of the stairs anddefendant standing near her saying that she shot herself. Barrios told defendant to come with himto his apartment, but defendant, at first, did not want to leave. Eventually, defendant agreed toleave with Barrios. Barrios saw the police arrive and led one of the officers to defendant. Another neighbor, Ricardo Torres, testified that he saw Barrios pulling defendant toward Barrios'apartment. Torres asked them what was wrong, and defendant responded, "Maggie shot herself."

Defendant testified as follows. He met Magdaliz in 1994 and they started living togetherin 1995. She already had one child by another man and, over the next two years, they had twomore children together. At some point in 1997, Flores moved in with them. On September 7,1997, one day before the incident, Magdaliz informed defendant that she wanted to apply for ajob at Luna Security. Defendant told Magdaliz that he did not want her to work at Luna Securitybecause she might get hurt. They agreed that Magdaliz would take the children to theirbabysitter's house prior to going to the interview. Instead, Magdaliz left the children at homewith defendant. Defendant became angry at Magdaliz for leaving the children with him, so heborrowed his brother Nicky's car and drove himself and the children to Luna Security.

Defendant saw Flores outside the Luna Security office and asked him where Magdalizwas. Flores told him that she was inside applying for a job. Defendant told Flores that he neededFlores and Magdaliz to come back to the apartment because he thought that someone from theDCFS (Department of Children and Family Services) might be coming, and the apartment neededto be cleaned. Magdaliz soon came outside and drove home with defendant and their children. Flores left in his own car. Defendant gave Magdaliz a driving lesson on the way home andallowed her to drive. She then parked the car and took the car keys back to defendant's brotherNicky. Defendant saw Flores and his friend and briefly spoke to them before returning to theapartment with Magdaliz and their children.

Once inside the apartment, Magdaliz went into the bedroom. She started crying anddefendant asked her if she was okay. Then Magdaliz went into the bathroom and began toprepare a bath for one of their children. Defendant took another child into the children's bedroomto put to bed for a nap. A short while later, defendant heard a door slam. He went to check onMagdaliz and discovered that their bedroom door was locked. Defendant grabbed a nail and triedto open the door with it. Through the crack in the door, he could see Magdaliz walking towardthe dresser. He heard the drawer open and close. Magdaliz walked back, away from the dresser. Then defendant heard a pop sound of a gunshot, and he burst through the door.

Defendant saw Magdaliz sitting on the bed; blood was coming out of her mouth. The gunwas on the bed. Defendant screamed for help. He grabbed Magdaliz and pulled her off the bed. Defendant then proceeded to pull Magdaliz toward the front door of the apartment. When he gotto the top of the stairs, he saw his father and brother. Defendant told them that Magdaliz hadshot herself. After defendant laid Magdaliz down on the floor, his father yelled, "Where is thegun?" Defendant ran to the bedroom, picked up the gun and threw it out of the window. He thenran back to Magdaliz. John Barrios pulled defendant away from Magdaliz and took him acrossthe street to Barrios' apartment. Within a few minutes, police came to Barrios' apartment. Defendant spoke to Officer Rivera, told him what had happened and showed him where the gunwas.

Defendant admitted to speaking with Det. Dickinson and Det. Rutherford at the policestation. However, he denied telling them that he argued or fought with Magdaliz on the day ofthe incident. He also stated that he told the detectives that he did not mean to say in his earlieraccount that he literally broke the door down; rather, he meant to say that he tried to open it witha nail. Defendant recalled speaking with Det. Guevara in English and stated that he does notspeak Spanish fluently. Defendant also stated that he recalled having a conversation with thedetectives regarding the distinction between manslaughter and murder; following thatconversation, he told the detectives there was a struggle between him and Magdaliz, even thoughthere was none. On cross-examination, defendant denied that he told Det. Dickinson that he wasangry or jealous of Magdaliz going to the job interview with Flores. He also denied that he toldDet. Dickinson that he threw things around the bedroom in anger and made a mess.

At both trials, the defense's theory of the case was that Magdaliz had committed suicide. Before each of the two trials, the State made a motion in limine to bar testimony that related tostatements allegedly made by Magdaliz regarding her suicidal state of mind. Defense counsel,however, argued that he was entitled to present evidence of Magdaliz's suicidal ideation. Defensecounsel sought to introduce testimony of Elizabeth Constable, one of Magdaliz's friends, as wellas her mother, Nancy Constable. Defense counsel stated that he expected their testimony to showthat about a month before Magdaliz died, she told Elizabeth that she felt like killing herself, and,approximately one week before her death, Magdaliz indicated to Elizabeth that she was makingherself vomit to lose weight and stated that she did not care if she lived or died. Elizabeth, whowas 16 years old at that time, spoke to her mother, Nancy, about these conversations withMagdaliz and repeated the conversations to her. Nancy Constable otherwise had no independentknowledge of Magdaliz's statements. The defense also sought to introduce testimony of CarolGonzales, who would state that, in 1993, Magdaliz told her that she had previously attemptedsuicide.

The State's position was that the proffered hearsay statements were inadmissible underSiebert v. People, 143 Ill. 571, 32 N.E. 431 (1892), which has never been expressly overruled. Siebert held that a statement as to a decedent's intent to commit suicide is inadmissible unlesscombined with evidence of a contemporaneous act of the decedent that such statement mightcharacterize or explain. Siebert, 143 Ill. at 588, 32 N.E. at 435. The only evidence of acontemporaneous act that the defense could offer was the proffered testimony of Carol Gonzalesthat some four years prior to making the statements regarding suicide to Elizabeth, Magdaliz toldCarol Gonzales that she had previously attempted suicide.

Defense counsel maintained that he was entitled to present evidence of Magdaliz's state ofmind prior to her death. The defense had also obtained affidavits of Elizabeth and NancyConstable. These affidavits, like the Constables' proffered testimony, related Magdaliz'sstatements about suicide. Specifically, the affidavit of Elizabeth Constable states that in thesummer of 1997, Magdaliz told her that she did not care if she lived or died and indicated that shewas making herself vomit by putting her finger down her throat. Elizabeth's affidavit furtherstates that about a week before she died, Magdaliz again stated that she did not care if she livedor died. Nancy's affidavit restates Magdaliz's declarations as they were related to Nancy byElizabeth. The trial court found Siebert controlling. The court further found that the profferedevidence was insufficient to meet the requirements of Siebert and barred defense witnesses fromtestifying to Magdaliz making statements related to contemplation of suicide.

Defense counsel also intended to offer the testimony of Dr. James Bryant, an expertpathologist, who would consider these affidavits, as well as the affidavit of Carol Gonzales,⁽³⁾ andrender an opinion as to the manner of Magdaliz's death. The defense expected Dr. Bryant totestify that, based on his review of all the relevant forensic material and the statements ofElizabeth Constable and Carol Gonzalez, the manner of death could have been suicide, rather thanhomicide. The defense planned to use Dr. Bryant's opinion to counter the opinion of the State'sexpert pathologist, Dr. Jones, who had concluded that the manner of death was homicide. TheState made a motion in limine seeking to bar the testimony of Dr. Bryant regarding the affidavitsof the Constables and to bar Dr. Bryant from testifying as an expert in forensic pathology. Thetrial court did not bar Dr. Bryant from testifying as an expert. However, the court prohibited Dr.Bryant from referring to the affidavits of the Constables at trial to explain the basis of his opinion. Likewise, the court prohibited defense counsel from using these affidavits while cross-examiningthe State's expert, Dr. Jones. Ultimately, Dr. Bryant did not testify at trial.

The second jury returned a verdict of guilty on the charge of first-degree murder. Thetrial judge denied defendant's two motions for a new trial, a motion to reconsider sentence, and amotion to reduce sentence. Defendant now appeals.

ANALYSIS

On appeal, defendant contends that (1) the trial court's ruling barring evidence ofMagdaliz's state of mind prior to her death violated defendant's constitutional rights and, becausethat error was not harmless, his conviction must be reversed; (2) the trial court committedreversible error by allowing the State's pathologist to invade the province of the jury by statingher opinion beyond a reasonable doubt; (3) the trial court committed a prejudicial constitutionalerror when it prohibited cross-examination of the State's expert witness on matters that directlyaffected the reliability of that witness' expert opinion; and (4) his sentence is excessive.

Defendant first contends that Elizabeth Constable and Carol Gonzales should have beenallowed to testify about Magdaliz's suicidal statements. Defendant urges that the trial court'sruling barring this evidence violated his fundamental constitutional right to present relevantexculpatory evidence, and his conviction should be reversed because the jury was unaware ofMagdaliz's suicidal ideation. The State, on the other hand, contends that the trial court properlyexcluded defendant's proffered evidence regarding Magdaliz's state of mind before her deathbecause that evidence was inadmissible hearsay.

It is undisputed that "[s]tatements that indicate the declarant's state of mind are admissibleas exceptions to the hearsay rule when the declarant is unavailable to testify, there is a reasonableprobability that the proffered hearsay statements are truthful, and the statements are relevant to amaterial issue in the case." People v. Caffey, 205 Ill. 2d 52, 91, 792 N.E.2d 1163, 1189 (2001).

Defendant argues that the state of mind exception applies with equal force to statementsevidencing a suicidal disposition or intent as it does to all other statements and, therefore, the trialcourt committed reversible error by excluding Magdaliz's statements concerning contemplation ofsuicide. In support, defendant relies on City of Streator v. Industrial Comm'n, 92 Ill. 2d 353, 365,442 N.E.2d 497, 503 (1982), where the court upheld the admissibility into evidence, under thestate of mind exception to the hearsay rule, of a suicide note stating that the decedent's work-related injury was the cause of his suicide; People v. Coleman, 328 Ill. App. 3d 688, 692, 767N.E.2d 388, 392 (2002), vacated on other grounds, 206 Ill. 2d 623, 799 N.E.2d 677 (2003),where the court upheld the admissibility of the decedent's out-of-court statements regarding herplan to divorce the defendant-- both to establish her state of mind and to suggest the defendant'smotive for killing her⁽⁴⁾; People v. Ross, 132 Ill. App. 3d 498, 503, 477 N.E.2d 1258, 1262-63(1985), where the court upheld the admissibility of letters written by the decedent shortly beforeher death and offered to counter the defendant's contention that the decedent committed suicide,by showing the decedent's optimistic state of mind; and United States v. Vetlmann, 6 F.3d 1483,1494-95 (11th Cir. 1993), where the court held that the exclusion of evidence of the decedent'ssuicide threats and references to dying was reversible error.

As noted, the State relies on the 1892 decision of our supreme court in Siebert, whichheld that hearsay declarations relating to the contemplation of suicide are generally inadmissible,unless they are part of the "res gestae," a contemporaneous act of the decedent which suchstatements might characterize or explain. Siebert, 143 Ill. at 588, 32 N.E. at 435. Siebert wasfollowed by our supreme court during the early part of the twentieth century in Nordgren v.People, 211 Ill. 425, 71 N.E. 1042 (1904), and Greenacre v. Filby, 276 Ill. 294, 114 N.E. 536(1916). While defendant does not, in his brief, offer any discussion of Siebert and its progeny, heimplicitly contends that the state-of-mind exception, including suicidal state of mind, has generallyevolved to allow admissibility without regard to the doctrine of res gestae (see Fed. R. Evid.803), and Siebert's proscriptions have been ultimately abandoned by our supreme court. For thereasons that follow, we agree.

The question regarding the admissibility of a decedent's statements evidencing a suicidaldisposition was first addressed in Jumpertz v. People, 21 Ill. 461 (1859), where the court, withoutreferring to the res gestae requirement, stated that evidence of a decedent's state of mind showingher predisposition to commit suicide was generally admissible. However, Siebert and its progeny,without referring to Jumpertz, held otherwise and required that suicidal declarations of thedecedent be accompanied by a contemporaneous related act, or res gestae. Siebert itself waschiefly based on the authority of Commonwealth v. Felch, 132 Mass. 22 (1882). Notably, asWigmore points out, Felch was overruled by Commonwealth v. Trefethen, 157 Mass. 180, 31N.E. 961 (1892), some two weeks before the Siebert ruling "and was of course then unreportedand unknown to the Illinois court; the latter, in the official report and in the bound volume of theNortheastern Reporter, inserted in the opinion a reference to the Trefethen case; but it is fair tosuppose that, had the Trefethen case been originally before them, they might have decideddifferently." 6 J. Wigmore, Evidence