People v. Petrie ( 2021 )

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Appellate Court Date: 2022.08.04
12:09:10 -05'00'
People v. Petrie, 2021 IL App (2d) 190213Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KATIE L. PETRIE, Defendant-Appellant.
District & No. Second District
No. 2-19-0213
Filed August 25, 2021
Decision Under Appeal from the Circuit Court of De Kalb County, No. 16-CF-19; the
Review Hon. Philip G. Montgomery, Judge, presiding.
Judgment Reversed and remanded.
Counsel on James E. Chadd, Thomas A. Lilien, and Amaris Danak, of State
Appeal Appellate Defender’s Office, of Elgin, for appellant.
Richard D. Amato, State’s Attorney, of Sycamore (Patrick Delfino,
Edward R. Psenicka, and Barry W. Jacobs, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE SCHOSTOK delivered the judgment of the court, with
opinion.
Justices Zenoff and Jorgensen concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, the defendant, Katie L. Petrie, was found guilty of two counts of
aggravated battery to a child (a Class X felony) (720 ILCS 5/12-3.05(b)(1) (West 2014)) and
two counts of aggravated battery to a child (a Class 3 felony) (id. § 12-3.05(b)(2)). The victim,
R.N., was an infant who was in her care and who sustained permanent injuries. After her
motion for a new trial was denied, Petrie was sentenced to 11 years’ imprisonment. She
appeals, arguing that (1) her jury waiver was invalid because she had requested a substitution
of judge but no substitution occurred and that judge accepted her jury waiver and (2) her
counsel provided her with deficient representation when he failed to adequately cross-examine
the State’s expert witnesses. We reverse and remand for a new trial.
¶2 Because the facts relevant to each issue are distinct, we proceed to our consideration of
those issues. We will address the facts relevant to each issue as necessary.
¶3 I. Substitution of Judge and Jury Waiver
¶4 A. Background
¶5 Petrie was arrested and charged on January 9, 2016. She appeared in court that day,
represented by attorney Richard Russo under a limited appearance, and her bond was set at
$500,000. Two days later, Russo filed a motion to reduce bond. On January 13, the parties
appeared before Judge Philip Montgomery, who announced that the case was assigned to Judge
Robbin Stuckert but she was out sick temporarily. That day, and at every succeeding court date
until she was released on bond, Petrie was present in court via video.
¶6 On January 15, Russo filed a motion for an automatic substitution of judge pursuant to
section 114-5(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/114-5(a)
(West 2014)).
¶7 On January 19, the parties appeared again before Judge Montgomery (Judge Stuckert was
still out), and Russo advised the court that Petrie had retained new counsel who would be filing
an appearance shortly. The motion to reduce bond was continued. There was no mention of
the motion for substitution of judge.
¶8 The next court date was January 26. The day before, the law firm of Johnson & Buh, LLC,
filed its appearance as substitute counsel on behalf of Petrie. Attorney Johnson appeared in
court before Judge Stuckert. He asked that the motion to reduce bond be heard the following
week. Judge Stuckert agreed, but she noted that the prior defense counsel had filed a motion
for substitution of judge. She stated that she was not sure “if that was addressed on the last
court date.” Johnson repeated his request that “the motion” be continued. Judge Stuckert set
February 9 as the hearing date but asked Johnson to let her know before then whether he wanted
to proceed with the substitution, because in that case she would not hear the bond reduction
motion. Johnson said that he would do so. The written order entered on January 26 did not
mention the motion for substitution of judge.
¶9 On February 9, attorney Buh appeared for the defendant. He asked for and was granted
more time so that he could meet with Petrie. No one mentioned the motion for substitution of
judge.
¶ 10 The hearing on the motion to reduce bond commenced on February 22 before Judge
Stuckert. There was no mention of the motion for substitution of judge. The hearing continued
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on February 29, when Judge Montgomery presided due to Judge Stuckert’s absence. Judge
Montgomery granted the motion, reducing the bond to $50,000. He also noted that the case
would continue before Judge Stuckert. There was no mention of the motion for substitution of
judge, which everyone appeared to have forgotten about.
¶ 11 Thereafter, Petrie was able to post bond. She was present in person at all later court dates
relevant here. On May 16, 2016, after Petrie had been indicted by a grand jury, Judge
Montgomery presided over her arraignment and admonished her regarding the charges against
her. However, the case continued to be assigned to Judge Stuckert, who presided over most of
the court dates during the next two years. On September 21, 2017, defense counsel advised
Judge Stuckert that Petrie was willing to waive her right to a jury trial. Judge Stuckert
questioned Petrie and found that her waiver was knowing and voluntary.
¶ 12 In March 2018, the case was transferred to Judge Montgomery, who began presiding over
the case on April 5, 2018. After hearing from the parties about the status of the case, Judge
Montgomery noted that a motion for substitution of judge had been filed in January 2016.
Commenting that he did not know “what relevance it has really anymore,” as Judge Stuckert
had reassigned the case to him, he said that he “just wanted to bring that to everyone’s attention
that that was there.” The attorneys did not respond to this comment and continued to discuss
discovery issues.
¶ 13 At the next court date, however, defense counsel brought the matter up:
“[DEFENSE COUNSEL]: You had—the last time we were in court you had
indicated—I believe it was the last time or the previous, that there was a substitution
of judge with Judge Stuckert.
***
That was filed by a previous attorney. I didn’t have anything to do with that, not
that I’m having an issue with that. The issue is we executed a jury waiver which is a
substantial right of my client before Judge Stuckert.
THE COURT: And I’m sure Judge Stuckert advised your client at the time that she
waived it that a waiver is forever and she can’t come back later on and change her mind.
[DEFENSE COUNSEL]: Correct, Judge. But the issue is it was after the
substitution of Judge when Judge Stuckert was not allowed to do a substantive right.
THE COURT: Okay.
[DEFENSE COUNSEL]: I’m not saying that I want to go back to a Jury trial, Judge,
I’m simply saying that this is an issue that I need to address with my client that I believe
we need to re-execute another jury waiver because Judge Stuckert according to my
understanding of substitution of judge, once that’s filed, it’s supposed to be
immediately transferred to another judge. So we’re talking about a substantive right
that my client executed—
THE COURT: Well, let’s stick with the motion that we have in front of us.”
After the trial court heard and granted the defendant’s motion to continue the trial date, it
returned to the subject of how to proceed with respect to the earlier jury waiver:
“THE COURT: *** [H]opefully we can all be prepared to proceed on that status
date with everything settled.
[DEFENSE COUNSEL]: Correct, Judge. I also anticipate at that time executing a
jury waiver before your Honor.
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THE COURT: Yeah, let’s get that issue settled too. I hadn’t thought of that, I’ll be
quite honest.
***
[DEFENSE COUNSEL]: [I]f we continue this case for three weeks [for status], at
that point I’ll have—I’ll speak with my client about executing a jury waiver and we can
possibly set a trial date in August. ***
THE COURT: I’ll be quite honest, [state’s attorney], I had not thought of the waiver
in conjunction with the motion for substitution.
[STATE’S ATTORNEY]: Well, Judge, I do not know if a defendant files a motion
and never asks for a ruling on it, how that affects the case *** but I think that it’s not
perhaps as straightforward as [defense counsel] is stating it is.
THE COURT: Well, I suppose it could become straightforward if Ms. Petrie
decides to execute a jury waiver in front of me.
***
[DEFENSE COUNSEL]: And Judge, the reason why I brought up the jury waiver,
what concerns me is if we go to trial *** and what happens on appeal.
***
And I just want—I just want to be up front with everybody about my concerns about
that substitution of judge. I don’t know if this issue has arisen in the past, I haven’t
researched it. I thought the easiest way to cure it is if we execute another jury waiver,
but this is something I need to speak with my client about.”
¶ 14 At the next court date, Judge Montgomery set a new trial date. He then commented that he
did not “know how much of an issue it is regarding the substitution of judge and the jury waiver
that was obtained.” He went on,
“I don’t think it’s an issue, because regardless of the SOJ being ruled on or not, it’s no
longer in front of Judge Stuckert and [the defendant has] waived her right to a jury trial.
*** So unless you think it’s an issue and you haven’t [sic] prepared a motion, I would
imagine that it will continue to a bench trial.”
Defense counsel replied, “I fully expect that as well. *** I have no reason to indicate to your
Honor or to the State that I would go forward as *** a jury trial.” The court then stated that, if
Petrie did not wish a bench trial, she would have to file a motion to withdraw the jury waiver.
Defense counsel responded that he understood and said, “I don’t plan on doing that, Judge.”
¶ 15 No motion to withdraw the jury waiver was filed, and the case proceeded to a bench trial
before Judge Montgomery. Petrie was convicted of all counts. One of the arguments in her
posttrial motion for a new trial was the lack of a valid jury waiver due to the motion for
substitution. The trial court denied the motion, saying that, “in regards to the substitution of
judge, I don’t believe that that’s an issue that requires a new trial.” Petrie now repeats her
argument on appeal.
¶ 16 B. Analysis
¶ 17 Section 114-5(a) of the Code (725 ILCS 5/114-5(a) (West 2014)) provides that, “[w]ithin
10 days after a cause involving only one defendant has been placed on the trial call of a judge[,]
the defendant may move the court in writing for a substitution of that judge on the ground that
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such judge is so prejudiced against him that he cannot receive a fair trial.” It further provides
that, once such a motion is filed, “the court shall proceed no further in the cause but shall
transfer it to another judge not named in the motion.” Id. Our supreme court “has consistently
held that the statute vests criminal defendants with the ‘absolute right’ to have an assigned trial
judge substituted upon a timely written motion.” People v. Walker, 119 Ill. 2d 465, 470 (1988).
The failure to reassign a case upon the timely filing of a proper motion is reversible error
requiring a new trial. See id. at 470-71; People v. Tate, 2016 IL App (1st) 140598, ¶ 19
(collecting cases).
¶ 18 The right to a substitution of judge has a long history in Illinois. As the Walker court noted,
the right was first codified in 1874, almost 150 years ago. Walker, 119 Ill. 2d at 470.
Defendants have a “basic constitutional right to a trial before a fair and impartial judge,” and
therefore “the provisions of the automatic-substitution-of-judge statute should be construed
liberally to promote rather than defeat substitution.” (Internal quotation marks omitted.) Id. at
470-71.
¶ 19 We observe that, because Judge Stuckert transferred the case to Judge Montgomery prior
to trial, Petrie was not forced to proceed to a trial before the judge to whom she objected.
Nevertheless, courts have generally held that, once a proper motion for substitution of judge is
filed, any subsequent actions taken by the judge who is the subject of that motion are invalid
and of no effect. See People v. McDuffee, 187 Ill. 2d 481, 492 (1999); Tate, 2016 IL App (1st)
140598, ¶ 20. Here, despite a timely motion seeking the substitution of Judge Stuckert, Judge
Stuckert presided over multiple proceedings in the case after that point, including one that
involved a substantial right of any criminal defendant: the decision whether to waive the right
to a trial by jury. Petrie argues that Judge Stuckert’s acceptance of her jury waiver was invalid
and notes that she never executed any other jury waiver. Thus, she argues, her bench trial
violated her constitutional right to a trial by jury, requiring a new trial.
¶ 20 The State does not quarrel with the general principles underlying Petrie’s argument.
Instead, it argues that those principles do not apply here, for three reasons: (1) the motion for
substitution of judge was defective because it did not name Judge Stuckert as the judge sought
to be substituted, (2) Petrie forfeited her argument because she failed to preserve the error by
raising it in the trial court, and (3) Petrie’s actions amounted to invited error or acquiescence
to the trial court’s failures to reassign the case and obtain a valid jury waiver. We examine each
argument in turn.
¶ 21 The first argument need not detain us long. Section 114-5(a) provides that, within 10 days
after a trial judge is assigned to a case, a defendant may seek “substitution of that judge”
through a written motion. (Emphasis added.) 725 ILCS 5/114-5(a) (West 2014). The plain
implication of this language is that the motion will be construed as seeking the substitution of
the assigned judge, even if that judge is not identified by name in the motion. The statute goes
on to say that a defendant “may name only one judge as prejudiced” unless the defendant is
charged with a Class X felony, in which case the defendant is allowed to list two judges of
whom he or she seeks substitution. Id.; see also McDuffee, 187 Ill. 2d at 487-88 (“a defendant
must be granted an automatic substitution of judge if” substitution is requested in a timely
written motion that, among other things, “names only one judge unless the defendant is charged
with a Class X felony, in which case he may name two”). This provision, however, is simply
a limit on the number of judges of whom a defendant may seek substitution, not a requirement
that a defendant explicitly identify the assigned judge by name in the motion for substitution.
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We are mindful that, in construing section 114-5, its provisions should be liberally construed
to promote rather than defeat substitution. McDuffee, 187 Ill. 2d at 488. Here, where the record
reflects that Petrie and her attorney were told that the case had been assigned to Judge Stuckert
and the motion for substitution was filed only two days later, the obvious conclusion is that the
motion sought the substitution of Judge Stuckert. We therefore decline to find the motion so
defective that it failed to comply with the requirements of the statute.
¶ 22 The State’s second argument fares no better. The State asserts that Petrie did not preserve
the trial court’s error in conducting a bench trial despite the lack of a valid jury waiver, because
she failed to object to the error and did not “raise this specific issue directly” in her posttrial
motion for a new trial. The record refutes these assertions: the defense attorney argued at length
to Judge Montgomery, months before the trial took place, that Petrie’s earlier jury waiver
before Judge Stuckert was not valid because it occurred after the motion for substitution was
filed, and the posttrial motion raised the same issue. Thus, the trial court had ample opportunity
to consider the issue and correct any errors both before and after trial. There is no merit to the
State’s claim of forfeiture through failure to object.
¶ 23 Our conclusion is different, however, when we consider the State’s argument that Petrie
invited and acquiesced in the error through her conduct, estopping her from raising the error
on appeal.
“[A] party cannot complain of error which that party induced the court to make or to
which that party consented. The rationale behind this well-established rule is that it
would be manifestly unfair to allow a party a second trial upon the basis of error which
that party injected into the proceedings.” In re Detention of Swope, 213 Ill. 2d 210, 217
(2004) (citing McMath v. Katholi, 191 Ill. 2d 251, 255 (2000), and People v. Segoviano,
189 Ill. 2d 228, 240-41 (2000)).
This type of waiver, which occurs through a defendant’s own conduct or her affirmative
acquiescence in the trial court’s actions, is different than a forfeiture that occurs when a
defendant fails to bring an error to the trial court’s attention, and it is not subject to the plain
error doctrine. See People v. Bowens, 407 Ill. App. 3d 1094, 1101 (2011) (citing People v.
Townsell, 209 Ill. 2d 543, 547-48 (2004)).
¶ 24 Here, the record shows that Petrie either invited or acquiesced in the trial court’s error at
two points. First, she failed to secure a ruling on her motion for substitution, thereby
abandoning it. The record reflects that on January 26, 2016, the first occasion that Judge
Stuckert presided over the case, she pointed out the fact that a motion for substitution had been
filed and indicated that she was willing to effectuate it, reassigning the case before she heard
the pending motion to reduce bond. Petrie’s new attorneys, who appeared on her behalf for the
first time on that date, did not seem to have been aware of the motion for substitution. They
agreed to advise Judge Stuckert before the hearing on the bond motion commenced about
whether they intended to stand upon the motion for substitution filed by the previous attorney.
However, they failed to do so.
¶ 25 It is the responsibility of the party filing a motion to bring it to the trial court’s attention
and have it resolved. Hernandez v. Pritikin, 2012 IL 113054, ¶ 54. Where no ruling has been
made on a motion, the presumption is that the motion was waived or abandoned. See Jackson
v. Alverez, 358 Ill. App. 3d 555, 563 (2005) (collecting cases). A party cannot appeal an issue
raised by motion where the motion was not ruled upon. See People v. Hall, 114 Ill. 2d 376,
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414 (1986) (“Because the defendant did not obtain a ruling on the question, he cannot now
complain that the court erred.”).
¶ 26 Petrie stresses the fact that a motion for substitution of judge as of right can and should be
granted automatically by the court where, as here, there was no contemporaneous objection by
the nonmovant. See People v. Gold-Smith, 2019 IL App (3d) 160665, ¶ 29 (“the statute makes
no provision for a hearing; rather it requires the court to transfer the case to another judge upon
receipt of defendant’s request”). However, she cites no law suggesting that, when new counsel
becomes involved before a motion for substitution has been granted, the movant may not be
offered the chance to reevaluate whether she wishes to stand upon her motion. Judge Stuckert
did not err in offering Petrie this option, and defense counsel agreed to inform Judge Stuckert
of Petrie’s decision before the judge heard and ruled on the motion to reduce bond. After that
point, as defense counsel was well aware, substitution would no longer be available. See
McDuffee, 187 Ill. 2d at 488 (automatic substitution of judge may not be had once the assigned
trial judge has made a substantive ruling in the case). Despite being made aware of the pending
motion for substitution and promising to inform the court whether Petrie wished to proceed
with it, defense counsel did not do so. Nor did counsel ensure that the motion was ruled on.
This failure amounted to abandonment of the motion.
¶ 27 Petrie argues that the right to an automatic substitution of judge is personal to a defendant
and cannot be waived by the action or inaction of counsel. Gold-Smith, 2019 IL App (3d)
160665, ¶ 29. However, Petrie was present in court via video on both (1) January 26, 2016,
when Judge Stuckert brought up the motion for substitution and warned that she needed to
know whether Petrie wished to proceed prior to the bond reduction hearing and defense counsel
agreed to confer with Petrie and advise Judge Stuckert of the results, and (2) February 22, when
the bond reduction hearing commenced without further discussion of the motion for
substitution. The record thus supports the conclusion that Petrie herself was aware of the issue
and voluntarily abandoned her motion for automatic substitution of judge, estopping her from
complaining about Judge Stuckert’s failure to rule on that motion or the fact that the case
proceeded before Judge Stuckert for the next two years.
¶ 28 Second, even if Petrie did not abandon or implicitly withdraw her motion for substitution,
she acquiesced to her case being tried as a bench trial before Judge Montgomery by failing to
take any action whatsoever to prevent it. On the first court date after the case was transferred
to him, Judge Montgomery noted the existence of the motion for substitution. At the next court
date, defense counsel suggested that, as the case had proceeded before Judge Stuckert despite
the motion having been filed, Petrie’s jury waiver might be invalid. However, defense counsel
did not present any legal authority to support that theory and further denied any intent to return
the case to the jury trial call. Rather, defense counsel simply posited that perhaps Petrie should
again waive her right to a jury trial, this time before Judge Montgomery. At the following court
date, Judge Montgomery stated that he did not view it to be a problem that Judge Stuckert had
presided over Petrie’s jury waiver and that the case would proceed to a bench trial unless Petrie
filed a motion to withdraw her jury waiver. Defense counsel said that he understood and that
he did not intend to file such a motion.
¶ 29 At that point, Petrie had several options. If she disagreed with her counsel and did not wish
to be tried by Judge Montgomery in a bench trial, she could have moved to withdraw her jury
waiver. Alternatively, if she believed that there was nothing to be withdrawn because the prior
waiver was not legally valid, her counsel could have filed a motion arguing that proposition,
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supported by legal authority. If she did not mind Judge Montgomery determining her guilt or
innocence but nevertheless believed that her prior waiver was invalid, she could have insisted
on executing a new jury waiver before Judge Montgomery. Instead, Petrie chose to do nothing,
despite the fact that Judge Montgomery clearly stated that her case would proceed to a bench
trial before him unless she filed a motion. By choosing to do nothing, Petrie acquiesced in the
trial court’s determination about how to handle the jury waiver issue, thereby waiving her right
to raise the issue on appeal. See Swope, 213 Ill. 2d at 217.
¶ 30 Petrie once again argues that the right at stake—her right to be tried by a jury—was one
that was personal to her and thus it could not be forfeited through the action or inaction of her
attorneys. See 725 ILCS 5/103-6 (West 2014); People v. Townsend, 2020 IL App (1st) 171024,
¶ 24. However, when a defense attorney states, in open court and in the defendant’s presence,
that a defendant is waiving a jury trial and the defendant does not object, the waiver will be
considered knowing, voluntary, and valid. See People v. Frey, 103 Ill. 2d 327, 332 (1984)
(“Recognizing that the accused typically speaks and acts through his attorney, we have given
effect to jury waivers made by defense counsel in defendant’s presence where defendant gave
no indication of any objection to the court hearing the case.”). Here, as in Frey, the record is
clear that Petrie understood her right to a jury trial, having been admonished regarding that
right by Judge Stuckert. Further, she was present in the courtroom on April 5, 2018 (when
Judge Montgomery first mentioned the motion for substitution), April 26, 2018 (when the
parties and the judge discussed at length the impact of that motion on Petrie’s earlier jury
waiver), and May 31, 2018 (when Judge Montgomery indicated that he did not view the issue
as a problem and that the case would proceed to a bench trial unless Petrie filed a motion to
withdraw her waiver). At no point did Petrie indicate any objection either to a bench trial or to
Judge Montgomery’s statement that the case would proceed to a bench trial unless a motion to
withdraw was filed. Thus, just as in Frey, it is clear from the record that Petrie herself was fully
aware of the issue and her choices, and her lack of objection to the statements of her counsel
may be taken as voluntary acquiescence to a bench trial. See id. at 333 (jury waiver was valid
where “defendant was aware of his right to a jury trial and was present” in court “when the
jury waiver was discussed”).
¶ 31 For all of these reasons, we reject Petrie’s argument that her jury waiver was invalid. We
turn to the second issue raised on appeal.
¶ 32 II. Ineffective Assistance of Counsel
¶ 33 Petrie’s second argument is that her trial counsel’s performance at trial was so deficient
that it fell below the level of constitutionally required effectiveness. Specifically, Petrie argues
that her counsel’s failure to cross-examine one of the State’s expert witnesses regarding the
bases for his opinions violated the standard of reasonable performance and led to her
convictions.
¶ 34 A. Background
¶ 35 R.N. was born on June 16, 2015. Beginning in August 2015, his mother, Jennifer N., took
R.N. to Petrie’s home day care. At about 11:20 on the morning of December 15, 2015, Petrie
called Jennifer, saying that R.N. was having a seizure. Petrie then called 911, and emergency
medical technicians arrived. When they (and someone from the county sheriff’s office) spoke
with her, Petrie told them that R.N. had been dropped off about 7 a.m. He was sleepy but
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otherwise seemed fine. He napped from 7:30 to 9:45. When he awoke, he was playing and
happy. At about 11 a.m., Petrie fed him some pureed bananas prepared by his mother without
incident and then took him into the living room to give him a bottle. After he had drunk about
two ounces, he vomited profusely. She laid him on the floor and went to get some wipes from
a container a few feet away. When she turned around, he seemed to be having a seizure: his
jaw was clenched and his arms were stiff. She immediately called Jennifer and then called 911.
¶ 36 When the emergency medical technicians arrived, R.N. was pale, lethargic, and
unresponsive, and he periodically stopped breathing. They performed cardiopulmonary
resuscitation (CPR) and gave him oxygen in the ambulance. R.N. was taken to Kishwaukee
Hospital. After a computed tomography (CT) scan showed subdural hematomas and a possible
skull fracture, he was airlifted to Rockford Memorial Hospital. When he arrived at the hospital,
he was found to have substantial swelling of his brain, a skull fracture of his left temporal bone,
widespread and multilayer retinal hemorrhages in both eyes, and a healing fracture of a lower
rib. A portion of his skull was surgically removed to relieve the pressure on his brain; a few
weeks later when R.N.’s brain swelling had decreased, it was reinserted. He later had eye
surgery at Lutheran Hospital and spent time at a rehab center. As the result of his injuries, R.N.
sustained significant brain damage and had limited vision (especially in one eye),
developmental delays, behavioral problems, and limited use of his right arm. He wore orthotics
to correct bone structure in his legs, limped, and had a scar on his head.
¶ 37 At trial, there was no real dispute about most of the elements of the charged offenses,
including that R.N. was below the age of 13, Petrie was an adult, and R.N.’s injuries amounted
to serious bodily harm. The question was what, and who, caused R.N.’s injuries. We
summarize the evidence pertinent to those issues.
¶ 38 Jennifer testified that R.N. had a cold in early December and she took him to the doctor,
who did not prescribe any medication. About six days before December 15, R.N. rolled off the
couch when Jennifer was changing his diaper. He cried, and Jennifer called the pediatrician,
who told her to call back if other symptoms developed, but none did. R.N. was congested from
the cold and coughed a lot through December 11. On December 12, the family went to Chicago.
R.N. was not coughing or congested. On Sunday, December 13, the family went to a party at
Jennifer’s parents’ boat club. R.N. was in a good mood, and Jennifer took a video, which was
played for the court. On the evening of Monday, December 14, R.N. threw up. Tuesday
morning, R.N. seemed fine. Jennifer did not recall whether he ate that morning before she took
him to day care at Petrie’s house.
¶ 39 After R.N. was taken to the hospital, Jennifer learned that, among other things, R.N. had a
broken rib that was older and healing. She had never seen any sign that he had a broken rib,
but he was a colicky baby who cried a lot, so she might not have associated it with a broken
rib if he cried when someone picked him up.
¶ 40 Eric N., R.N.’s father, worked two jobs: he drove a school bus in the early morning, worked
for another company until 2 p.m. or so, drove the afternoon shift on the school bus, and then
returned to the other company. He usually got home around 8:30 or 9:30 p.m. R.N. generally
woke up two or three times each night, and Eric was usually the one who woke up with him.
Eric confirmed that R.N. was sick with a cold in early December. R.N. showed no sign of pain
from a broken rib when Eric held him, and Eric did not know how R.N. got the broken rib. On
the night of December 14, R.N. followed his usual sleep pattern, and Eric did not notice any
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difference in him. Both Eric and Jennifer denied ever shaking R.N., hitting him in the head, or
slamming his head into anything.
¶ 41 At the hospital on December 15, R.N. was found to have a fracture of his left temporal
bone, left side brain swelling, and a subdural hematoma (a collection of blood under the dura,
or covering of the brain), as well as blood in the interhemispheric fissure between the two
halves of the brain. Dr. Todd Alexander, a neurosurgeon, performed surgery on R.N., removing
about half of his skull to relieve the pressure on his brain from swelling. Dr. Alexander also
drained the subdural hematoma, which consisted of new blood (less than 12 hours old). Dr.
Alexander noted the skull fracture, which was not easily seen on the CT scan and was fully
visualized only during the surgery. The fracture had several branches and extended from near
R.N.’s left ear to the top of his head.
¶ 42 Based upon the skull fracture and the location of the blood and swelling on the same side
of the head as the fracture, Dr. Alexander believed that the cause of R.N.’s injuries was trauma
to the head. To produce the kind of fracture he saw, the primary point of contact must have
been the left side of R.N.’s head. The injuries could not have been caused by a fall from a
couch. A fall from 2½ or 3 feet onto even a hard surface would not cause the level of injury he
saw unless some additional force had been used. The force needed to produce the injuries—
the skull fracture and tears of multiple veins in the brain—would require a car accident, a fall
from more than five or six feet, or a traumatic blow to the head. Because there was no evidence
in R.N.’s history of any accident of that type, Dr. Alexander believed that the injuries were
nonaccidental.
¶ 43 As for the timing, based on the kind of bleeding, the amount and location of the blood and
the swelling, and “the reaction that was going on in the brain,” Dr. Alexander believed that the
injury occurred hours rather than days before R.N.’s seizure began. Although the injury could
have occurred as long as six to eight hours before, Dr. Alexander thought that the injury most
likely occurred only an hour or so before R.N. arrived at the hospital.
¶ 44 Dr. Raymond Davis, a pediatrician who was board certified in child abuse pediatrics and
who worked regularly with the Medical Evaluation Response Initiative Team (MERIT), an
advocacy program funded by the Department of Children and Family Services, testified for the
State. Dr. Davis was not a neurologist or neurosurgeon. He consulted on R.N.’s case on
December 16, 2015, the day after surgery. He reviewed R.N.’s medical records, including Dr.
Alexander’s postsurgical notes, and spoke with R.N.’s parents. He also physically examined
R.N. The physical exam did not reveal any bruises. Soft tissue injury to the neck would be best
seen on a magnetic resonance imaging (MRI), but no MRI was done at that point.
¶ 45 Dr. Davis testified that the CT scan showed a lot of blood (no older than about 12 hours)
in the interhemispheric fissure and all over the left side of the brain. The amount of swelling
on the left side could be seen by the fact that the midline of the brain had been pushed to the
right and by the lack of gray-white differentiation, showing that the usual “squiggles” in the
brain itself had been flattened out by pressure. This indicated a hypoxic-ischemic injury with
decreased blood and oxygen available on the left side. He did not see any skull fracture on the
CT, but he learned about it from Dr. Alexander’s notes and did not doubt that Dr. Alexander’s
description was accurate. R.N.’s X-rays showed a healing posterior fracture of the eleventh rib
that was likely 7 to 10 days old. Posterior rib fractures like this were often caused by squeezing
forces consistent with shaking. An ophthalmological exam of R.N.’s eyes showed multilayer
retinal hemorrhages extending to the periphery in both eyes.
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¶ 46 Dr. Davis ordered coagulation studies and tests for infection; the results of these tests ruled
out blood diseases, infection, and various other natural causes of seizures and bleeding. The
full skeletal series of X-rays did not show any diseases, abnormalities, or fractures other than
the rib fracture. Although no MRI was done initially, an MRI done later showed areas of dead
brain tissue on the left side of R.N.’s brain.
¶ 47 Dr. Davis described how forward-and-backward acceleration and deceleration forces, often
called “shaken-baby syndrome” (SBS), could cause hematomas due to tears of the veins that
extended from the brain through the dura. In his opinion, the bleeding all over the left side of
R.N.’s brain, coupled with the extensive retinal hemorrhages, indicated that R.N.’s injuries
were caused by SBS. Although retinal hemorrhages could be caused by something other than
SBS, extensive retinal hemorrhages like those seen in R.N. could only be caused by “very high
trauma acceleration-deceleration injuries,” like from car accidents or SBS. The bleeding and
swelling would cause “an immediate concussive episode” in which R.N. would not be
responsive and could also cause seizures and breathing difficulties as the swelling pressed on
areas of the brain that controlled breathing. Both of those were consistent with the reports of
what actually happened with R.N. Dr. Davis did not believe that the bleeding and swelling
were caused by a fall or other impact, because they were diffuse over the left side of the brain,
not just around the point of impact.
¶ 48 The skull fracture was not caused by SBS but by a forceful impact. It was significant that
the fracture was of a temporal bone, as accidents more commonly resulted in fractures of the
parietal bones or sometimes the frontal or occipital bones, while temporal fractures were more
often found to have resulted from child abuse. However, Dr. Davis could not form an opinion
as to how the fracture occurred.
¶ 49 As for when the injuries occurred, Dr. Davis could not say when the skull fracture had
occurred; it could have been weeks or more. As for the bleeding and swelling, however, Dr.
Davis was adamant that it could only have occurred immediately before the seizure, between
11 and 11:20 a.m. He opined that such massive injury and swelling would have an immediate
effect and that there would not be a “lucid interval” (a period in which an injured child appears
normal). Further, Petrie’s own reports described R.N. as happy and able to eat without
difficulty only moments before the seizure. Dr. Davis opined that R.N. would not have been
“happy” if he had a severe brain injury; the severity of the injuries would have resulted in
immediate symptoms. For this reason, although he was not a neurosurgeon like Dr. Alexander,
he disagreed with Dr. Alexander’s estimate that the injury could have occurred up to six to
eight hours earlier.
¶ 50 On cross-examination, Dr. Davis conceded that, although the acceleration-deceleration
forces must have been substantial to cause the blood and swelling shown on the CT scan, the
damage was only on the left side of the brain and no injury to the right side could be seen.
However, CT scans did not always show brain damage, and R.N. did have hemorrhages in both
eyes. SBS was commonly associated with freshly broken ribs, bruises, long-bone fractures,
and retinal hemorrhages; of these, R.N. had only the retinal hemorrhages. Dr. Davis agreed
that healing rib fractures were fragile and the previously fractured rib could easily have
refractured if R.N. were shaken and that there was no sign of recent injury to the rib. Dr. Davis
also agreed that R.N.’s vomiting the night before could be significant. Nevertheless, he adhered
to his opinion that the injury that caused the bleeding and swelling in R.N.’s brain (which in
turn caused the brain damage and retinal hemorrhages) occurred immediately before the
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seizure. Defense counsel did not cross-examine Dr. Davis specifically about the basis for any
of his statements, including his statement that there could not have been a “lucid interval” after
the injury, in which R.N. appeared to be his usual self, before the seizure and other signs of
distress began.
¶ 51 Dr. Davis admitted that one doctor’s note stated that R.N. had fallen only two days before
the seizure, but he discounted that because the doctor had drawn that information from the
emergency room records at Kishwaukee Hospital and did not speak directly to the parents. Dr.
Davis had spoken to R.N.’s parents, who told him that the fall had occurred closer to two weeks
ago. He admitted that in fact, according to his notes, the parents had told him that the fall
occurred nine days before the seizure. When asked why he described that period as “two
weeks,” Dr. Davis said that he was “bad at math.” Dr. Davis agreed that falls of less than 40
inches could cause a skull fracture. However, based on a big study out of California, he opined
that such falls did not cause life-threatening injuries requiring surgical intervention.
¶ 52 Dr. Joseph Scheller, a board-certified pediatric neurologist and an expert in neuroimaging,
was the sole witness for the defense. Before forming his opinions, he reviewed all of R.N.’s
medical records, from birth through the present. He began by noting that retinal hemorrhages
occurred when there was pressure on the blood vessels within the skull, as the retinal vessels
were the most likely place to allow blood to escape. They could be caused by many things, not
just SBS, including birth itself: 30% of healthy babies were born with some retinal
hemorrhages.
¶ 53 R.N. had a subdural hematoma, swelling, and a skull fracture on the left side. To a
neurologist, that added up to an impact injury that caused complications on December 15,
2015. The number one cause of a subdural hematoma was an impact injury. SBS was
developed as an explanation for when the brain showed an impact injury without a skull
fracture or other evidence of impact.
¶ 54 Dr. Scheller discussed R.N.’s medical records. The December 2015 CT scan showed fresh
blood (from the last day or two) in the intercranial fissure and huge pressure from the swollen
left side of the brain against the right side. Other than that pressure, however, there was no
evidence of any problem with the right side of R.N.’s brain. The retinal hemorrhages were
caused by the pressure from the brain swelling, and they were in both eyes because the left
side of the brain was pushing into the right side. They persisted for several days after the
surgery.
¶ 55 An MRI taken a little over a week after R.N.’s seizure showed that the right half of his
brain was “perfectly normal” but the left half had begun to atrophy. A CT scan from May 2017,
over a year later, showed that the left side of R.N.’s brain was atrophied and “withered.” The
right side was healthy, without any damage.
¶ 56 Dr. Scheller did not believe that R.N.’s injuries were caused by shaking, for two reasons.
First, there was no sign of any injury to the right side of R.N.’s brain, as there would be if he
had been shaken. One could not shake half the brain without simultaneously shaking the other
half as well. Second, there was evidence of an impact injury: the skull fracture on R.N.’s left
side. Dr. Scheller believed that R.N.’s injuries resulted from an impact injury to the left side
of his head that caused an acute subdural hematoma and also caused the left side of his brain
to swell. That swelling, which pushed against the right side, caused the retinal hemorrhages in
both eyes as well as the eventual brain damage.
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¶ 57 As for the timing of the impact injury, based on Dr. Scheller’s 30 years of experience as a
practicing pediatrician seeing children with head injuries, he believed that it could take up to
48 hours for symptoms to show themselves. A snowball effect could occur, in which minor
bleeding from an impact could cause a hematoma (collection of blood) that pushed against the
dura, creating a space between the brain and the dura, and that in turn could cause further tears
of blood vessels and further enlargement of the hematoma. Thus, a smaller hematoma could
have led to the diffuse subdural hematoma and blood seen on December 15. He opined that
R.N.’s skull fracture and subdural hematoma could have occurred anytime between December
13 and 15. The fracture could be the result of an accident; both the medical literature and his
own experience practicing medicine supported that possibility.
¶ 58 On cross-examination, Dr. Scheller agreed that R.N. had no preexisting conditions that
would account for his state on December 15. Symptoms of a subdural hematoma included
headache, lethargy, vomiting, weakness, inability to walk straight, seizures, and coma. Of
these, R.N. had lethargy, vomiting, and seizure on December 15. The trauma that caused R.N.’s
injuries could have occurred on December 15, shortly before he was taken to the hospital. Dr.
Scheller acknowledged that he was paid about $2500 to review R.N.’s records and another
$2500 to testify and that in the last 15 years he had testified only on behalf of defendants.
However, he had reviewed many cases of suspected abusive head trauma in which he
concluded that he could not testify for the defense and had told defense attorneys that.
¶ 59 The State then called Dr. Davis to testify in rebuttal. He stated that R.N.’s injuries were
caused by both shaking and impact. He believed that shaking had occurred, because the
subdural hematomas were diffuse, not localized. As for why the right side of R.N.’s brain
showed no injury, even in “confirmed” cases of SBS (in which a confession or autopsy supplied
evidence of shaking), some cases—20 to 30%—showed injury on only one side. Further,
sometimes the injury to one side existed but could not be seen, but there was later evidence of
damage to both sides.
¶ 60 During closing arguments, defense counsel argued that the evidence did not prove beyond
a reasonable doubt that the injury occurred while R.N. was in Petrie’s care. Counsel noted that
the State’s two experts disagreed on several things, including the cause of the subdural
hematoma: although Dr. Davis believed that it was caused by shaking, Dr. Alexander never
suggested that and instead stated that it was caused by the skull fracture, similar to the
conclusion of the defense neurologist, Dr. Scheller. Counsel pointed to the absence of injury
to the right side of R.N.’s brain and the lack of any reinjury to R.N.’s 7- to 10-day-old healing
rib fracture, arguing that they undermined Dr. Davis’s conclusion of SBS. Counsel also
emphasized the opinions of Drs. Alexander and Scheller that the hematoma could have been
caused earlier than the morning of December 15, during a time when R.N. was not in Petrie’s
care. The State responded that it did not need to prove the mechanism of R.N.’s brain injury
and retinal hemorrhages, only that Petrie caused them and did so knowingly.
¶ 61 In finding Petrie guilty of all counts, the trial court took note of the video from December
13, which showed R.N. “smiling, laughing, giggling, and kicking his legs” in response to
tickling, and the testimony of R.N.’s parents that he appeared fine until he was dropped off at
Petrie’s day care and that they did not abuse him, which the court found to be credible. The
trial court found that, when R.N. arrived in Petrie’s care on December 15, “he was fine, or at a
minimum, not exhibiting any outward signs of illness or injury.” In assessing the expert
testimony, the trial court noted that Dr. Davis was board certified in child abuse pediatrics,
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unlike Dr. Scheller, and that Dr. Davis worked with MERIT to provide medical examinations
in cases of suspected child abuse but Dr. Scheller did not. Further, Dr. Scheller had an interest
that Dr. Davis did not, in that about three-quarters of his income was derived from testifying
for the defense in child abuse cases. The trial court stated that Drs. Alexander and Davis did
not have these “interests, biases, and prejudices.” Nevertheless, even Dr. Scheller agreed that
the symptoms of a subdural hematoma could occur immediately, including the symptoms that
R.N. displayed. As for Dr. Scheller’s testimony that the injury could have occurred up to two
days earlier but the symptoms did not manifest until the defendant was in Petrie’s care, the trial
court found that testimony not to be credible. Petrie herself had told witnesses that R.N. was
smiling and playing until he vomited and began seizing. The trial court found that the evidence
therefore showed that only Petrie could have inflicted the injuries and that her actions were
knowing and not accidental.
¶ 62 B. Analysis
¶ 63 On appeal, Petrie argues that her trial counsel provided ineffective assistance by failing to
sufficiently cross-examine Dr. Davis regarding the bases for his opinions. In particular, she
contends that counsel should have challenged Dr. Davis about (a) the support for his statement
that there could not be a “lucid interval” in which a child with a subdural hematoma and brain
swelling appeared normal and (b) whether an accidental cause such as aspiration of vomit
could have caused or exacerbated R.N.’s condition.
¶ 64 The sixth amendment to the United States Constitution grants defendants the right to the
effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984). Under
Strickland, a defendant arguing ineffective assistance of counsel must show not only that his
or her counsel’s performance was deficient but that the defendant suffered prejudice as a result.
People v. Houston, 226 Ill. 2d 135, 143 (2007). Under the two-prong Strickland test, “a
defendant must show that (1) his counsel’s performance was deficient in that it fell below an
objective standard of reasonableness, and (2) the deficient performance prejudiced the
defendant in that, but for counsel’s deficient performance, there is a reasonable probability that
the result of the proceeding would have been different.” Id. at 144. Because a defendant must
satisfy both prongs of the Strickland test, the failure to establish either is fatal to the claim.
Strickland, 466 U.S. at 687.
¶ 65 1. Whether Counsel’s Performance Was Unreasonable
¶ 66 There is a strong presumption that counsel’s actions or inactions—such as the decision not
to present certain arguments or not to call witnesses, including the client herself—constitute
sound strategy. People v. Perry, 224 Ill. 2d 312, 341-42 (2007). To prove otherwise, a party
must show that counsel’s conduct was “so irrational and unreasonable that no reasonably
effective defense attorney, facing similar circumstances, would pursue such a strategy.” People
v. Jones, 2012 IL App (2d) 110346, ¶ 82.
¶ 67 Petrie argues that defense counsel should have questioned the basis for Dr. Davis’s opinion
that, with the type of injury sustained by R.N.’s brain, there would not have been a “lucid
interval,” i.e., a period of time after the injury occurred in which R.N. appeared to be fine. She
asserts that the question of timing was pivotal in this case and that the only way to establish
when the causal event occurred was through expert testimony. Both of the neurologists, Dr.
Alexander and Dr. Scheller, believed that the causal injury was the skull fracture, which could
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have occurred several hours before R.N.’s seizure began, although Dr. Alexander believed it
was likely shorter. Dr. Davis was the only expert who opined that the causal injury (in his view,
shaking) must have occurred immediately before the seizure, stating that there could be no
lucid interval. However, despite the existence of studies (cited by Petrie in her brief) showing
that a lucid interval has been observed in children with similar injuries, defense counsel did
not ask Dr. Davis to identify a basis in the professional literature for his immediate-effect/no-
lucid-interval opinion, and he did not inquire whether the general consensus of the professional
community supported that opinion. Instead, counsel simply let Dr. Davis state his opinion as
if it were fact.
¶ 68 An expert opinion must be based on facts or data reasonably relied upon by experts in that
particular field. People v. Comier, 2020 IL App (1st) 170500, ¶ 81; People v. Burhans, 2016
IL App (3d) 140462, ¶ 30; Ill. R. Evid. 703 (eff. Jan. 1, 2011). If the expert is proffered by the
State, the State bears the burden of establishing the foundation for the expert’s opinion.
Burhans, 2016 IL App (3d) 140462, ¶ 30. If the State fails to do so, the trial court should not
allow the opinion into evidence. Id. ¶ 31.
¶ 69 An expert may testify to an opinion without first identifying the basis for the opinion.
People v. Murray, 2019 IL 123289, ¶ 31; Ill. R. Evid. 705 (eff. Jan. 1, 2011). The burden then
shifts to the opposing party to explore the missing information through cross-examination.
Murray, 2019 IL 123289, ¶ 33. However, the burden remains on the State to prove all the
elements of the offense, which may include the burden of laying a proper foundation for the
admission of an expert opinion relevant to one of those elements. Id. ¶ 37.
¶ 70 In this case, Dr. Davis testified on direct examination that, with the level of swelling R.N.’s
brain experienced, there would be an immediate effect such as nonresponsiveness or seizure.
Even if a child was not unresponsive, “an injury like that” would cause immediate observable
effects such as “extreme irritability, lethargy, vomiting, [and] listlessness,” and the child would
not appear normal. Dr. Davis stated that he held this opinion to a reasonable degree of medical
certainty and that it was based on principles that were generally accepted within the medical
community. However, he did not say what those principles were or identify any studies or
publications supporting his statement. On cross-examination, defense counsel asked if Dr.
Davis disagreed with Dr. Alexander’s testimony that the injury could have occurred as much
as six to eight hours before the symptoms, and Dr. Davis said that he did disagree. Defense
counsel did not question him further about that disagreement or its basis in the medical
literature.
¶ 71 On redirect examination, Dr. Davis expounded on his opinion once again:
“So an injury like [R.N.’s] could take time to show itself, okay. It’s a severe injury,
that will definitely show itself at some point. The bleeding was fresh, not showing signs
of clotting, so likely within 12 hours. He had seizures and signs of—however, that type
of an injury will cause an immediate effect and a continued effect. So there will not be
a, quote, lucid interval.
You will not get that injury eight hours ago, and then be normal that morning when
dad feeds him, normal when mom is up with him smiling and happy, go to the sitter’s,
be normal and smiling and happy from 9:45 to 11, and then all of a sudden I’m just
going to try to die suddenly. That does not happen in this type of an injury to the brain
tissue.”
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Dr. Davis then agreed that “[i]n general an injury like that could present over time,” which is
why he would work backward from the event, speaking “with the parents and everybody else
to find out when was that child smiling and happy last,” because that was “the only way to
define the time of injury in these types of situations.” Thus, his disagreement with Dr.
Alexander’s testimony and his opinion that the causal injury occurred immediately before the
seizure were based on “the reports of [R.N.’s] behavior during the hours preceding when he
was taken to the hospital.”
¶ 72 It is clear that Dr. Davis believed that an injury sufficient to cause R.N.’s brain to ultimately
bleed and swell to the point of seizure could not have occurred without immediate observable
symptoms. What is not clear is his reason for this belief. At no point in any of this testimony
did Dr. Davis testify that his opinion was the general consensus in his field of child abuse
pediatrics or identify any professional literature supporting his opinion. Thus, his opinion was
subject to objection as being inadmissible for lack of foundation. See Burhans, 2016 IL App
(3d) 140462, ¶ 31. Indeed, although it might have been sufficient for him to testify that his
opinion was based on his own medical training and experience (see People v. Schuit, 2016 IL
App (1st) 150312, ¶ 95), he did not even do this. However, defense counsel never objected
based on the lack of foundation or pressed Dr. Davis to identify any studies supporting his
opinion. Petrie argues that this opinion was vital to the State’s case that she was the only one
who could have caused R.N.’s injuries and thus no reasonable attorney would have failed to
cross-examine Dr. Davis regarding the foundation for his opinion.
¶ 73 The State asserts that Petrie forfeited her argument about Dr. Davis’s immediate-effect/no-
lucid-interval opinion because the defense did not request a hearing pursuant to Frye v. United
States, 293 F. 1013 (D.C. Cir. 1923), to determine whether Dr. Davis’s opinion had a valid
scientific basis. See Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003) (appellant forfeited argument
that medical opinion evidence should not have been admitted by failing to object to its
admission or seek a Frye hearing on its admissibility). We find this argument unpersuasive for
two reasons. First, Illinois courts have held that, when a conclusion that a child’s injuries were
caused by shaking is based on a medical expert’s experience and training rather than on a
scientific principle or methodology, no Frye hearing is required. Schuit, 2016 IL App (1st)
150312, ¶¶ 84-85; People v. Cook, 2014 IL App (1st) 113079, ¶ 52. Here, the record does not
show that Dr. Davis’s immediate-effect/no-lucid-interval opinion was based on any scientific
principle or methodology. Thus, under the logic of Schuit and Cook (which we note without
expressly adopting), no Frye hearing was required, so defense counsel’s failure to seek one
could not forfeit Petrie’s argument. Second, while a contemporaneous objection (and in some
cases, a Frye hearing) is necessary to preserve an evidentiary argument (Snelson, 204 Ill. 2d at
24-25), the lack of such an objection has no effect on an argument that trial counsel provided
ineffective assistance. Indeed, Petrie’s very point is the failure of her trial counsel to object to
the lack of foundation for Dr. Davis’s opinions. We reject the State’s forfeiture argument.
¶ 74 The State next argues that defense counsel performed well, cross-examining Dr. Davis ably
on several points and also countering Dr. Davis’s opinions through the testimony of Dr.
Scheller. Dr. Scheller disputed Dr. Davis’s opinion that the causal injury must have produced
an immediate effect and there could not have been a period of normalcy. He testified that the
skull fracture was the cause of R.N.’s brain injuries and that both the medical literature (some
of which he detailed) and his own 30 years of experience as a pediatric neurologist supported
his opinion that there could be a period of up to two days before a subdural hematoma resulted
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in observable symptoms. The State argues that the introduction of contrary expert testimony
distinguishes this case from People v. Watson, 2012 IL App (2d) 091328, ¶ 32, in which we
found that a defendant’s attorney fell below the constitutionally mandated threshold of
effectiveness because he failed to challenge the foundation of an expert’s opinion on a central
issue in the case. The defense theory at trial here was that Dr. Davis was wrong in his opinion
that R.N.’s injuries were caused by shaking and that the actual cause was a traumatic impact
linked to the skull fracture, which could have occurred when R.N. was not in Petrie’s care. The
State asserts that defense counsel advanced this defense with skill.
¶ 75 We agree with these points. However, challenging Dr. Davis’s immediate-effect/no-lucid-
interval opinion by pressing him on the basis for it was fully compatible with defense counsel’s
trial strategy. This was not a case in which challenging the foundation for Dr. Davis’s opinion
would have conflicted with or undermined the defense. Rather, such additional cross-
examination would have strengthened Petrie’s defense that the causal injury could well have
occurred earlier. We therefore find that trial counsel’s failure to cross-examine Dr. Davis on
the basis for his opinion or object on the lack of foundation was “so irrational and unreasonable
that no reasonably effective defense attorney, facing like circumstances, would pursue such a
strategy.” Jones, 2012 IL App (2d) 110346, ¶ 82.
¶ 76 Petrie also argues that her counsel should have pressed Dr. Davis regarding the possibility
that natural causes or accidental events could have caused R.N.’s subdural hematoma and brain
swelling, which in turn caused his retinal hemorrhages. She notes that SBS is a diagnosis of
exclusion, meaning that it may only be made once competing explanations for a child’s injuries
have been ruled out, and she cites publications finding that a variety of nontraumatic conditions
can cause subdural hematomas, brain swelling, and lack of oxygen (hypoxia) to the brain. Most
of the other possible causes listed in the literature that Petrie cites—congenital malformations,
metabolic disorders, blood diseases, infectious diseases, vitamin deficiencies, and autoimmune
conditions—were in fact ruled out here because there was no evidence of them, as even Petrie’s
own expert Dr. Scheller agreed. However, Petrie argues that counsel failed to acquaint himself
sufficiently with brain injuries in infants to realize that alternate, accidental explanations for
R.N.’s injuries existed and failed to present these possibilities to the factfinder.
¶ 77 Specifically, Petrie focuses on a possible accidental cause of R.N.’s brain swelling and
hypoxia: a laryngospasm and sudden inability to breathe triggered by aspiration of his vomit.
She cites one medical article and two cases that discuss the possibility that such an event could
cause the hypoxic brain injury and swelling that Dr. Davis noted in R.N. Moreover, she argues,
such an explanation would be consistent with the evidence here, including R.N.’s vomiting the
night before, his sleepiness earlier on the morning of the seizure, his vomiting immediately
before the seizure, and his difficulty breathing after the seizure. Her full theory is that R.N.
received a skull fracture, and likely some brain bleeding and swelling due to that fracture, in
the day or two before his seizure. However, the symptoms of that brain injury—the vomiting
and lethargy—were not particularly noticeable until they were exacerbated by R.N.’s
accidental aspiration of his own vomit at Petrie’s home that morning, which triggered a
laryngospasm, depriving his brain of oxygen and causing the seizure and further swelling. She
argues that her counsel should have cross-examined Dr. Davis about this possibility and that
counsel’s failure to do so was ineffective assistance.
¶ 78 We agree that the record reflects that, although defense counsel realized the significance
of certain facts, such as R.N.’s vomiting the night before, counsel did not demonstrate the
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understanding of brain injuries in infants necessary to frame a cogent alternate explanation
from those facts. Although Petrie emphasizes her counsel’s failure to question Dr. Davis
regarding this alternate possibility, we note that counsel also failed to advance the theory
through Dr. Scheller’s direct testimony. Moreover, counsel failed to realize and capitalize on
the significance of Dr. Davis’s concession that R.N. displayed hypoxic-ischemic brain
injuries—i.e., those caused by lack of oxygen to the brain—not the diffuse axonal injury that
typically occurred in SBS cases. Thus, counsel missed the opportunity to point up findings that
contradicted Dr. Davis’s own explanations of R.N.’s injuries. While we do not require defense
attorneys to train themselves as brain surgeons, in a case such as this, counsel must familiarize
himself with the relevant scientific evidence and applicable theories to enable him to challenge
the prosecution’s expert witnesses and advance alternate explanations that are supported by
the evidence. “The constitutional guarantee of effective counsel contemplates that, to render
the trial a reliable adversarial process, counsel will *** appreciate and understand the legal
principles applicable to the case.” Watson, 2012 IL App (2d) 091328, ¶ 22; see also People v.
Faulkner, 292 Ill. App. 3d 391, 394 (1997). The failure to do so here falls below the threshold
of constitutionally mandated assistance of counsel. Thus, the first prong of the Strickland test
is met.
¶ 79 2. Whether Defendant Was Prejudiced
¶ 80 The second prong of the Strickland test examines the actual prejudice to the defendant by
her counsel’s deficient performance. This inquiry asks whether there is a reasonable probability
that, but for counsel’s deficient performance, the result of the proceeding would have been
different. Houston, 226 Ill. 2d at 144. Absolute certainty is not required. Rather, a “reasonable
probability” is “a probability sufficient to undermine confidence in the outcome” (Strickland,
466 U.S. at 694), and a probability may be reasonable even if the chance of a different result
is less than 50% (People v. McCarter, 385 Ill. App. 3d 919, 935 (2008)).
¶ 81 Here, the trial court explicitly based its finding of guilt on Dr. Davis’s opinion that the
causal injury must have occurred immediately before R.N.’s seizure. It relied almost wholly
on this opinion in finding that Petrie was the person who caused R.N.’s injuries. However,
there was substantial medical literature calling this opinion into question and documenting its
opposite: that lucid intervals have been observed in children with injuries similar to R.N.’s. In
addition, there was other evidence undermining Dr. Davis’s conclusions, including R.N.’s
vomiting the night before, suggesting that his subdural hematoma and some brain swelling
may already have been present, and the fact that his fragile healing rib fracture had not been
reinjured, suggesting that he had not been shaken. Thus, there is a reasonable probability that,
if defense counsel had cross-examined Dr. Davis on the foundation for his opinion in light of
contrary studies, Dr. Davis’s certainty and credibility could have been lessened, leading to a
different outcome.
¶ 82 The State argues that any prejudice was minimal, because defense counsel presented the
testimony of Dr. Scheller, who rebutted Dr. Davis’s opinion and cited both medical literature
and his own experience to support his opinion that R.N. suffered a traumatic head injury and
could well have had a lucid interval. Petrie responds that, even where a contrary expert opinion
is offered, such a conflict simply requires the trier of fact to decide which expert to believe,
and so exposing the lack of support for one expert’s opinion is still vital. See People v.
Houseworth, 388 Ill. App. 3d 37, 52 (2008) (where the central issue at trial is the subject of
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conflicting expert testimony, the trier of fact must choose which is more credible, and “the
weight given to an expert’s opinion is measured by the stated reasons and the factual details
supporting the conclusion”).
¶ 83 The State also argues that some studies support Dr. Davis’s opinion and that, if questioned
about the basis for his opinion, Dr. Davis might well have responded by citing those studies.
In that case, it argues, Dr. Davis’s opinion would not have been undermined through such
cross-examination, and there is no probability that the outcome would have been different.
This argument enters the realm of speculation, guessing how Dr. Davis would have responded
if he were questioned about the bases for his opinions. Moreover, even assuming that Dr. Davis
could cite professional literature supporting his opinion and explain why he did not accept the
contrary studies, the very act of requiring him to do so would communicate to the trial court
that his opinion was the subject of debate in the medical community. Defense counsel’s failure
to even suggest that this debate existed was unprofessional error and, taken with the trial court’s
reliance on Dr. Davis’s unchallenged opinion to find Petrie guilty, was prejudicial to Petrie.
See Strickland, 466 U.S. at 694 (a reasonable probability of prejudice is simply “a probability
sufficient to undermine confidence in the outcome”). Accordingly, we must reverse her
convictions.
¶ 84 Because we are remanding this cause for a new trial, we must consider whether the
evidence was sufficient to sustain Petrie’s conviction beyond a reasonable doubt. People v.
Jiles, 364 Ill. App. 3d 320, 330-31 (2006). The double jeopardy clause forbids a second trial
for the purpose of affording the prosecution another opportunity to supply evidence that it
failed to muster in the first proceeding. Id. at 331. However, it does not preclude retrial if the
evidence introduced at trial was legally sufficient to convict but the conviction must be set
aside because of errors in the trial process. Id. (citing People v. Olivera, 164 Ill. 2d 382, 393
(1995)). “Evidence is sufficient when a rational trier of fact, after viewing the evidence in a
light most favorable to the prosecution, could find that the essential elements of the offense
were proven beyond a reasonable doubt.” Id. (citing People v. Collins, 106 Ill. 2d 237, 261
(1985)). Given the closeness of the evidence, we find that this standard is met here.
¶ 85 III. CONCLUSION
¶ 86 The judgment of the circuit court of De Kalb County is reversed, and the cause is remanded
for a new trial.
¶ 87 Reversed and remanded.
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