People v. T.W.

FIFTH DIVISION
June 30, 2010
No. 1-09-0197
In re T.W., a Minor, ) Appeal from the
(The People of the State of Illinois, ) Circuit Court of
) Cook County.
Petitioner-Appellee, )
)
v. )
)
T.W., ) Honorable
) Edward Pietrucha,
Respondent-Appellant). ) Judge Presiding.
JUSTICE HOWSE delivered the opinion of the court:
Respondent T.W. was charged in a petition for adjudication
of wardship with one count of aggravated criminal sexual abuse
and two counts of aggravated criminal sexual assault. The trial
court entered a finding of delinquency on all counts. Respondent
was sentenced to an indeterminate amount of time in the Illinois
Department of Juvenile Justice, not to exceed his twenty-first
birthday. On appeal, respondent contends the trial court erred
in denying him funds to obtain an expert witness, in violation of
section 113-3(d) of the Illinois Code of Criminal Procedure of
1963 (Code) (725 ILCS 5/113-3(d) (West 2008)). Respondent also
contends his trial counsel rendered ineffective assistance by
failing to withdraw as counsel after the trial court denied funds
for an expert witness, and by misunderstanding the basic elements
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of the charged offenses. For the reasons that follow, we affirm
the trial court’s judgment.
FACTS
The testimony adduced at respondent’s trial established that
on June 14, 2005, the six-year-old victim, A.S., went to the
Evanston YMCA with his mother for swim lessons. While A.S. was
changing into his swimsuit, an African-American male allegedly
walked into the men’s locker room and offered the victim a
lollipop. The male took the victim into a bathroom stall and put
him on a changing table. The male then rubbed his penis on the
victim’s anus. After the male took the victim off the changing
table and put him face-down on the floor, the male continued to
rub his penis on the victim’s anus. When the male let the victim
go, A.S. pulled on his swim trunks and went to the pool area.
After the victim told a YMCA swim instructor and his mother
what happened, the YMCA director called the police. While they
waited for the police to arrive, the victim went into the men’s
locker room with the swim instructor to change back into his
street clothes. When Evanston police officer Heidi Bernhardt
arrived, she met with the victim and his mother. Officer
Bernhardt then went to the locker room to photograph the scene.
She recovered a towel from a garbage can, and a condom that was
still in its package from a stairwell. Both items were placed
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into property inventory in a sealed condition at the Evanston
police station. Evanston police detective Berman also responded
to the scene. According to Detective Berman, the victim
described the person who assaulted him as “in his 30's, about six
feet tall, slim build with braided hair pulled back into a
ponytail, wearing a red shirt, dark pants.”
Later, when the victim’s mother returned to her home, she
noticed her son’s swimsuit had a stain on the inside of it. She
put the suit in a ziplock bag and called the police. Officer
Bernhardt picked the bag up from the victim’s home around 20
minutes later. The stain on the swimsuit was subsequently used
by the Illinois State Police lab to generate a DNA profile that
did not belong to the victim.
Prior to respondent’s trial, defense counsel filed a motion
to provide the defense with funds for an expert witness. The
motion noted that during the discovery process, defense counsel
discovered the State’s case rested entirely on DNA analysis that
did not exclude the respondent. Defense counsel alleged the
respondent was indigent and was being represented without charge
“by the indigent defense nonprofit Evanston Community Defender
Office, Inc.” Defense counsel requested that the court enter an
order granting funds to be used by the defense “to hire, to
consult with, and potentially call as a witness an expert in DNA
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analysis.”
During a hearing on the motion, defense counsel explained
that he worked for the Evanston Community Defender’s Office,
which is a not-for-profit corporation funded in part by the City
of Evanston to assist low-income families. The trial court
noted:
“[T]he normal way an indigent person is
represented in this court and in this county
system are by the Cook County Public
Defender’s Office. The Cook County Public
Defender’s Office is funded by the taxpayers
of Cook County, and they have in their
arsenal, money for expert witnesses no matter
whether –- they may be for sex offenses, or
for murder, or any other types of offenses.”
The court informed defense counsel that if the Evanston Community
Defender’s office did not feel it could adequately represent
defendant by paying for an expert witness, the court would
appoint the public defender’s office to represent the minor.
When defense counsel explained the Evanston Community
Defender’s office could not pay for the expert, much in the same
way that private appointed counsel would not have that in their
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resources, the court found:
“There’s a key word; appointed, counsel. You
voluntary [sic] stepped in and represented
this individual. You were not appointed by
this Court. *** We are all involved in a
budget crunch, as is Cook County. They’re
laying off workers everywhere. And there’s a
system developed in Cook County called Cook
County Public Defender’s office who represent
indigent individuals. You voluntarily
stepped in and took this case. If you cannot
afford –- if you’re telling me the Evanston
Community Defender’s Office cannot afford to
represent him, then I’m going to appoint the
Cook County Public Defender’s office to sit
in and join in this case.”
The court then appointed the public defender to represent
respondent. At a subsequent status hearing, the public
defender’s office objected to being appointed to the case. The
court vacated the appointment of the public defender without
discussion.
Returning to the issue of the pending motion for funds for
an expert witness, the trial court noted that because the
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Evanston Community Defender’s program was not appointed by the
court it became its responsibility to provide funding for any
expert witnesses. The court denied defense counsel’s motion.
The court admitted the request for funds was for a “crucial
expert witness.” The court said that if defense counsel could
not adequately represent respondent, it was counsel’s duty to
withdraw so the public defender could be appointed. In response
to defense counsel’s claim that he was otherwise adequately
qualified to represent the minor besides the lack of funds to
hire an expert, the court noted:
“You voluntarily came in and took this case.
Now it becomes your responsibility to
adequately represent this minor. That’s an
ethical obligation on your behalf. It does
not effect the minor’s 6th Amendment right to
Counsel. But, you have got to represent this
minor adequately. If you feel that you
cannot represent this minor in the nature and
structure of your office, then it becomes –-
then that’s a matter up to you.”
Defense counsel did not withdraw and the matter proceeded to
trial.
At trial, the victim’s mother testified she heard A.S. tell
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the police the man who attacked him was in his late 20s to early
30s. Detective Gershon testified he photographed respondent on
December 14, 2007, which included pictures of tattoos on
respondent’s forearms. During his prior custodial encounters
with respondent, Detective Gershon had not mentioned that
respondent had any tattoos in his reports. Detective Gershon
said he could not be certain if he looked at respondent’s arms on
those occasions.
Sergeant Collier testified he collected a buccal swab from
respondent on December 14, 2007, following a court order. Blake
Aper, a forensic DNA and biology analyst at the Illinois State
Police Rockford Forensic Science Lab, testified he was qualified
as an expert in forensic DNA analysis. He said that after
receiving the swimsuit in a sealed condition, he saw a stain on
the inside rear portion of the suit. Aper tested the stain for
semen and saw sperm cells. He then performed tests to extract
DNA from the sample and create a DNA profile. After comparing
respondent’s DNA profile from the buccal swab to the DNA profiled
identified from the stain on the victim’s suit, Aper offered his
expert opinion that the DNA profiles matched. Aper testified the
DNA profile would be expected to occur in 1 out of 4.6
quintillion black individuals, 1 out of 2.6 septillion white
individuals, or 1 out of 3.7 septillion Hispanic individuals.
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On cross-examination, Aper explained the statistics are
actually based on how frequently you would find that profile in
the random population, not that it belongs to a certain person.
Aper admitted he could not tell how the stain got onto the
swimsuit. Aper admitted the stain could have been transferred
onto the swimsuit if the suit had been dropped onto some fluid on
the ground or the victim sat in the fluid.
Bonnie Brunette testified for the defense that she conducted
a “victim-sensitive interview” with A.S. on June 16, 2005. When
Brunette asked A.S. to described his attacker during the
interview, A.S. said the person was about the age of his dad,
late 20s to early 30s. A.S. told her the attacker was about 6
feet tall and looked like a basketball player. A.S. also told
Brunette he thought the man in the locker room had tattoos on his
forearms and was unshaven.
Respondent’s adoptive mother testified that in June 2005,
respondent did not have any tattoos or facial hair. She said
respondent was 5 feet 6 inches tall at the time. The parties
stipulated that Saul Rivere, a tattoo artist, would testify that
to the best of his recollection he did respondent’s tattoos
during the first third of 2007. Defense counsel did not present
a DNA expert witness at trial.
The trial court found respondent guilty of aggravated
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criminal sexual abuse and aggravated criminal sexual assault.
The court ordered respondent be committed to the Illinois
Department of Juvenile Justice for an indefinite period of time,
with the sentence to terminate upon respondent reaching 21 years
of age unless discharged sooner by the department. Respondent
appeals.
ANALYSIS
I. Section 113-3(d) of the Code
Respondent contends that because he was indigent and his
defense counsel was acting on a pro bono basis, the trial court
erred in denying respondent funds to obtain an expert witness
under section 113-3(d) of the Code.
A. Motion to Fund
The State counters the trial court properly denied defense
counsel’s request for funds for an expert witness because defense
counsel was not court appointed, meaning section 113-3(d) of the
Code did not apply. We disagree.
A trial court’s denial of a motion for funds for an expert
witness is generally reviewed for an abuse of discretion. People
v. Page, 193 Ill. 2d 120, 153, 737 N.E.2d 264 (2000). Because
the proper construction of a statute is a question of law,
however, we review a trial court’s interpretation of a statute de
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novo. People v. McBride, 395 Ill. App. 3d 204, 209, 916 N.E.2d
1282 (2009).
Initially, we note a defendant’s right to counsel has been
recognized as a fundamental right at both the federal and state
levels. The sixth amendment of the United States Constitution
provides that in all criminal prosecutions, “the accused shall
enjoy the right *** to have the Assistance of Counsel.” U.S.
Const., amend. VI. That sixth amendment guarantee requires an
indigent criminal defendant be provided with counsel at the
public’s expense in order to ensure fairness at his trial.
Gideon v. Wainwright, 372 U.S. 335, 9 L. Ed. 2d 799, 83 S. Ct.
792 (1963). Section 8 of article 1 of the Illinois Constitution
provides that in all criminal prosecutions, “the accused shall
have the right to appear and defend in person and by counsel,”
and “to have process to compel the attendance of witnesses in his
or her behalf.” Ill. Const. 1970, art. I, §8. The sixth
amendment right to counsel includes a criminal defendant’s right
to the effective assistance of counsel (Cuyler v. Sullivan, 446
U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980)), and
generally the State must, as a matter of equal protection,
“provide indigent defendants with the basic tools of an adequate
defense or appeal” (People v. Clankie, 180 Ill. App. 3d 726, 730,
536 N.E.2d 176 (1989), citing Ake v. Oklahoma, 470 U.S. 68, 77,
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105 S. Ct. 1087, 1093, 84 L. Ed. 2d 53, 62 (1985)).
Expert witnesses “are often essential to the defense of
indigent defendants in criminal proceedings,” and “these
witnesses are not expected to donate their services but must
usually be offered a substantial fee.” People v. Kinion, 97 Ill.
2d 322, 334, 454 N.E.2d 625 (1983). Illinois has long recognized
that a defendant may be entitled to funds to hire an expert
witness where the expert’s testimony is deemed critical to a
proper defense. Clankie, 180 Ill. App. 3d at 730, citing People
v. Glover, 49 Ill. 2d 78, 82-83, 273 N.E.2d 367 (1971). “It is
well established that a denial of funds to an indigent for the
securing of expert witnesses in defense of criminal charges may
violate constitutional protections.” People v. Lawson, 163 Ill.
2d 187, 220, 644 N.E.2d 1172 (1994), citing People v. Watson, 36
Ill. 2d 228, 221 N.E.2d 645 (1966).
Section 113-3(b) of the Code (725 ILCS 5/113-3(b) (West
2008)) provides, in relevant part, that: “In all cases, except
where the penalty is a fine only, if the court determines that
the defendant is indigent and desires counsel, the Public
Defender shall be appointed as counsel.” Section 113-3(d) of the
Code provides:
“In capital cases, in addition to
counsel, if the court determines that the
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defendant is indigent the court may, upon the
filing with the court of a verified statement
of services rendered, order the county
treasurer of the county of trial to pay
necessary expert witnesses for defendant
reasonable compensation stated in the order
not to exceed $250 for each defendant.” 725
ILCS 5/113-3(d) (West 2008).
Our supreme court construed section 113-3(d) to also extend
to indigent defendants charged with non-capital felonies in
Watson. Watson, 36 Ill. 2d at 233. The supreme court based the
extension of the statutory language on the constitutional right
to compel the attendance of witnesses, noting “it is at once
apparent that the right to summon witnesses is fundamental to our
legal system.” Watson, 36 Ill. 2d at 233. While the court
recognized there is a distinction between the right to call
witnesses and the right to have those witnesses paid for by the
government, the court noted that in certain instances involving
indigents the lack of funds to pay for witnesses will often
preclude the defendant from calling that witness and occasionally
prevent him from offering a defense. Watson, 36 Ill. 2d at 233.
An entitlement to funds under section 113-3(d) of the Code
is established where “the defendant demonstrates that the expert
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services sought are necessary to prove a critical issue in the
case and where the defendant’s financial inability to obtain his
own expert will prejudice his case.” Clankie, 180 Ill. App. 3d
at 730, citing Glover, 49 Ill. 2d at 82-83.
The parties do not dispute respondent was indigent. The
record also clearly establishes that the trial court conceded
respondent’s request for funds was for a “crucial expert
witness.” Accordingly, the issue of whether respondent was
entitled to funds to pay for the necessary expert witness turns
solely on whether section 113-3(d) of the Code applies only in
cases where an indigent criminal defendant’s defense counsel is
court appointed.
A reviewing court’s primary objective in interpreting a
statute is to ascertain and give effect to the intent of the
legislature. People v. Whitney, 188 Ill. 2d 91, 97, 720 N.E.2d
225 (1999). A statute’s language must be afforded its plain,
ordinary, and popularly understood meaning. People v. Robinson,
172 Ill. 2d 452, 457, 667 N.E.2d 1305 (1996). We will not depart
from the plain meaning of a statute by reading into it
exceptions, limitations, or conditions that conflict with the
express legislative intent. People v. Black, 394 Ill. App. 3d
935, 939, 917 N.E.2d 114 (2009). We will also presume the
legislature did not intent an absurd, inconvenient, or unjust
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result in enacting the legislation. People v. Brown, 374 Ill.
App. 3d 385, 388, 871 N.E.2d 931 (2007). Moreover, in a criminal
prosecution, any ambiguity in a statute should be construed and
resolved in the defendant’s favor. Robinson, 172 Ill. 2d at 457.
In Lawson, the defendant contended the trial court erred in
denying his motion for funds to obtain the services of a
fingerprint and shoeprint expert. Lawson, 163 Ill. 2d at 218-29.
The court noted the expert’s opinion of the shoeprint, as
acknowledged by the prosecutor, was the strongest evidence
presented by the State because it was the only evidence capable
of establishing defendant’s actual presence at the scene of the
murder. Lawson, 163 Ill. 2d at 228-29. The State’s only
remaining evidence consisted of highly inconsistent eyewitness
testimony. The court held that “[w]ithout the assistance of a
shoeprint expert, defense counsel could not be sufficiently
prepared to attack the scientific basis of Peck’s several
opinions, particularly with respect to those factors Peck relied
on in positively identifying the impressions as made by
defendant’s shoes.” Lawson, 163 Ill. 2d at 229. A defense
expert could have offered his own opinions, which might have been
entirely different from the State’s expert. Lawson, 163 Ill. 2d
at 229.
Moreover, the court held the State possessed an advantage in
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being able to present its expert’s opinion when defendant could
not. Lawson, 163 Ill. 2d at 230, citing Little v. Armontrout,
835 F.2d 1240, 1245 (8th Cir. 1987). Our supreme court noted
“[f]airness demands that defendant be allowed the means to do
so.” Lawson, 163 Ill. 2d at 230. Because a shoeprint expert’s
opinion was necessary to defendant’s proving crucial issues in
his case, the court held the lack thereof prejudiced him.
Lawson, 163 Ill. 2d at 230.
In People v. Evans, 271 Ill. App. 3d 495, 498, 648 N.E.2d
964 (1995), the defendant maintained the trial court abused its
discretion in denying her motion for an expert witnesses’ fee
because the defendant established both her indigence and the
necessity of the expert’s services in presenting her theory of
self defense. This court noted “[t]here can be no dispute that
the State must disburse funds to pay for the reasonable fees of
necessary expert witnesses on behalf of indigent felony
defendants” under section 113-3(d) of the Code. Evans, 271 Ill.
App. 3d at 499. Holding there was ample support for the
conclusion that the defendant sufficiently demonstrated her
entitlement to expert assistance funding, the court found the
record clearly established, and the State did not dispute, that
she was in fact indigent. Evans, 271 Ill. App. 3d at 502. In
concluding the indigent defendant was entitled to funds under
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section 113-3(d), the court specifically noted that “[a]lthough a
private law firm represented her, that firm apparently provided
its services on a pro bono basis.” Evans, 271 Ill. App. 3d at
502.
Although Evans only briefly touches on whether a private
attorney representing a defendant pro bono may request funds for
a necessary expert witness under section 113-3(d), the majority
of other jurisdictions that have addressed the issue in detail
have concluded that under the United States Constitution and
their respective state statutes, indigent defendants represented
by pro bono or retained counsel are entitled to state funding for
expert witness fees. While not controlling, we find those cases
persuasive on the issue of whether section 113-3(d) is intended
to extend to indigent defendants not represented by court-
appointed counsel.
In State v. Brown, 2006 NMSC 023, ¶13, 139 N.M. 466, 134
P.3d 753, the New Mexico Supreme Court held that under the
state’s indigent defense act and the state and federal
constitutions, trial courts have the inherent authority to order
state funding for expert witnesses and other ancillary services
for indigent defendants represented by pro bono counsel. The
court noted a defendant is: “constitutionally entitled to be
provided with the basic tools of an adequate defense. That right
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is not contingent upon the appointment of Department counsel; it
is inherent under the state and federal Constitutions.” Brown,
2006 NMSC 023, ¶25, 139 N.M. 466, 134 P.3d 753. Accordingly, the
New Mexico Supreme Court found representation by the public
defender was not necessarily required in order for indigent
defendants to receive state funding for other necessary defense
services. Brown, 2006 NMSC 023, ¶25 139 N.M. 466, 134 P.3d 753.
In State v. Burns, 2000 UT 56, ¶27, 28, 4 P.3d 795, the Utah
Supreme Court considered whether section 77-32-1 of the Utah Code
of Criminal Procedure (Utah Code Ann. § 77-32-1 (1990))
specifically conditioned expert assistance for indigent
defendants on the appointment of state-funded counsel. Section
77-32-1 set minimum standards that must be provided for indigent
defendants in criminal cases, including requiring the State to
provide “the investigatory and other facilities necessary for a
complete defense.” Burns, 2000 UT 56, ¶28, 4 P.3d 795, quoting
Utah Code Ann. § 77-32-1 (1990). The Utah Supreme Court noted
the only requirements for receiving public assistance for expert
witnesses are proof of necessity and establishment of indigence.
Burns, 2000 UT 56, ¶28, 4 P.3d 795. While the court recognized
the issue of who is paying for a defendant’s attorney may be a
factor in determining the defendant’s indigency, it is not a
determinative factor. Accordingly, the court held “it is clear
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from the plain language of that section that a county must
‘[p]rovide the investigatory and other facilities necessary for a
complete defense’ to every indigent person, not just to those
represented by the [public defender].” Burns, 2000 UT 56, ¶28, 4
P.3d 795; see also English v. Missildine, 311 N.W.2d 292, 293
(Iowa 1981) (Iowa’s Supreme Court held “[t]he rule is authority
for public payment of witnesses for indigents at trial. It does
not distinguish between indigents who are represented by court-
appointed and private counsel”); Williams v. Martin, 618 F.2d
1021, 1027 (4th Cir. 1980) (trial judge’s refusal to provide
publicly funded expert to indigent defendant with private counsel
was violation of sixth and fourteenth amendments); People v.
Worthy, 109 Cal. App. 3d 514, 167 Cal. Rptr. 402 (1980)
(defendant represented by private counsel constitutionally
entitled to publicly funded experts if defendant showed indigency
and necessity).
Here, the only requirements explicitly found in section 113-
3(d) for providing state funding for an expert witness are that
the defendant be “indigent” and that the expert witness be
“necessary” to present a proper defense. See 725 ILCS 5/113-3(d)
(West 2008). Nothing in the language of section 113-3(d) of the
Code indicates the legislature intended to condition an indigent
defendant’s right to seek funds for a necessary expert witness on
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whether he is represented by court-appointed counsel. Reading
such an exception into the statutory language would be
inconsistent with the long-recognized principle in Illinois that
an indigent defendant may be entitled to funds to hire an expert
witness where the expert’s testimony is deemed critical to a
proper defense. Clankie, 180 Ill. App. 3d at 730, citing Glover,
49 Ill. 2d at 82-83. We will not depart from the plain meaning
of section 113-3(d) by reading into it exceptions, limitations,
or conditions that conflict with the express legislative intent
of the statute. Black, 394 Ill. App. 3d at 939.
We find that under a plain reading of section 113-3(d), a
defendant is entitled to funds if he establishes that he is
indigent and that an expert witness is necessary for an adequate
defense. See 725 ILCS 5/113-3(d) (West 2008). Moreover, such an
entitlement to funds under section 113-3(d) occurs regardless of
whether the indigent defendant receives assistance of counsel
from a court-appointed attorney. See Evans, 271 Ill. App. 3d at
502. See also Brown, 139 N.M. at 472; Burns, 4 P.3d at 801. It
is the indigency of the defendant that matters under section 113-
3(d) of the Code, not who represents the defendant at trial.
Accordingly, we find the trial court abused its discretion in
denying the indigent respondent’s motion for funds for a
necessary DNA expert witness based on the fact that he was
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represented by pro bono counsel.
Notwithstanding, the State contends the alleged error was
harmless beyond a reasonable doubt in this case given defense
counsel’s ability to secure alternative assistance and counsel’s
adequate cross-examination of the State’s DNA expert.
In order for a trial error to be considered harmless, there
must be no reasonable probability that the outcome of the trial
would have been different if the error had not occurred. People
v. Flournoy, 336 Ill. App. 3d 739, 746, 784 N.E.2d 353 (2002).
In this case, the DNA expert’s testimony regarding
respondent’s match to the DNA profile generated from the seminal
fluid stain found on the victim’s swim trunks was the strongest
evidence presented by the State. Testimony presented by the
defense clearly established the victim’s description of his
attacker did not match respondent’s alleged description at the
time of the attack. According to Detective Berman, the victim
described the person who assaulted him as “in his 30's, about six
feet tall, slim build with braided hair pulled back into a
ponytail, wearing a red shirt, dark pants.” Respondent’s
adoptive mother testified that in June 2005, respondent, a minor,
did not have any tattoos or facial hair. She also said
respondent was only 5 feet 6 inches tall in 2005. In finding
respondent guilty in this case, the trial court specifically
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noted:
“[T]he Court keeps in mind that the testimony
was coming from a six year old and if the
Court were just only to rely on the six year
old, [A.S.’s] testimony, there might be a
different verdict. But there is something
more in this case. There is a DNA sample.
And according to the testimony of the
chemist, DNA expert, says that the match was
a profile one and four cotillion (phonetic)
for an African-American, one in six cotillion
for a white individual, and one in three
point nine cotillion for a Hispanic
individual and that is proof beyond a
reasonable doubt.”
Contrary to the State’s contention, nothing in the record
suggests defense counsel was able to obtain expert assistance
with the critical DNA evidence from an alternate source before
respondent’s trial.
During the status hearings prior to the start of
respondent’s trial, defense counsel sought several continuances
in order to see if he could obtain pro bono expert services in
regard to DNA, and to continue his own investigation and research
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into the critical DNA evidence. During a status hearing on June
2, 2008, the trial court asked defense counsel whether he had
hired a DNA expert after counsel requested another continuance.
Defense counsel responded:
“I have not been able to retain an expert.
We don’t have funds, as the Court knows. We
have a request for funds to be made
available. Because we do not have funds, I
am searching for some pro bono services and
also doing as much independent research as
possible.”
When the State requested a continuance during a status
hearing on August 18, 2008, defense counsel told the court he had
no objection to the continuance because:
“Understanding the scientific evidence is a
matter of self-education, this weekend I came
across an article that basically gives me
some information that I would like to look
into before [the State’s DNA expert]
testifies.”
Defense counsel further explained he wanted additional time to
prepare for trial in order to investigate a recent scientific
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article he had discovered regarding the reliability of DNA
identification. Defense counsel did not present a DNA expert
witness at trial.
We do agree with the State that the trial court’s error was
harmless in this case, however. Although we stress the trial
court clearly erred in denying respondent the funds to obtain a
necessary expert in light of his indigency, we find there is
nothing in the record to suggest a reasonable probability exists
that having a DNA expert to assist the defense would have changed
the ultimate result of the proceeding. People v. Henney, 334
Ill. App. 3d 175, 186, 777 N.E.2d 484 (2002).
After comparing respondent’s DNA profile from the buccal
swab to the DNA profiled identified from the stain on the
victim’s suit, Aper offered his expert opinion that the DNA
profiles matched. Aper testified the DNA profile would be
expected to occur in 1 out of 4.6 quintillion black individuals,
1 out of 2.6 septillion white individuals, or 1 out of 3.7
septillion Hispanic individuals.
In support of our conclusion the error in this case was
harmless, we note that on cross-examination defense counsel had
the opportunity to extensively examine the State’s DNA expert.
Aper explained in response to defense counsel’s questioning that
DNA statistics are actually based on how frequently you would
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find that profile in the random population, not that it belongs
to a certain person. Aper admitted he could not tell how the
stain got onto the swimsuit. Aper also admitted the stain could
have been transferred onto the swimsuit if the suit had been
dropped onto some fluid on the ground or the victim sat in the
fluid.
Nothing in Aper’s direct or cross-examination testimony
suggests there were any potential discrepancies or errors in the
DNA test results. Accordingly, we fail to see how a DNA expert
would have made defense counsel’s cross-examination of Aper any
more effective in this case.
In light of the overwhelming nature of the DNA evidence
presented in this case, we simply cannot find the trial court’s
error in choosing to deny respondent’s motion to fund prejudiced
the outcome of his case.
B. Failure to Recuse Counsel
Respondent contends the trial court further exacerbated the
error in denying funds by failing to remove defense counsel after
counsel said he could not adequately represent respondent without
receiving funds to obtain the expert witness.
Our supreme court has recognized a judge has the discretion
to “remove defense counsel whose performance is so inadequate
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that the defendant is not receiving the level of assistance of
counsel guaranteed by the sixth amendment.” Burnette v. Terrell,
232 Ill. 2d 522, 535, 905 N.E.2d 816 (2009), citing People v.
Johnson, 192 Ill. 2d 202, 207, 735 N.E.2d 577 (2000).
Here, the trial court informed defense counsel on several
occasions that he had an ethical responsibility to withdraw from
the case if he felt he “cannot represent this minor in the nature
and structure of your office.” Defense counsel refused the
court’s invitation to withdraw, informing the court that he felt
he was adequately qualified to represent the minor
notwithstanding the lack of funds to hire an expert.
During the status hearings leading up to respondent’s trial,
defense counsel informed the court he was pursuing funding and
exploring pro bono assistance options in order to obtain an
expert witness. He also informed the court that he was
conducting extensive research on his own in order to understand
and defend against the complex DNA evidence at issue in the case.
Nothing in the record concretely suggests defense counsel was
incapable of adequately representing respondent.
In light of the record before us, we cannot say the trial
court abused its discretion by failing to force defense counsel
to recuse himself.
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II. Ineffective Assistance of Counsel
Respondent contends defense counsel provided ineffective
assistance of counsel in this case.
In order to establish a claim of ineffective assistance of
counsel, a defendant must show his attorney’s actions constituted
errors so serious as to fall below an objective standard of
reasonableness and that, without those errors, there was a
reasonable probability his trial would have resulted in a
different outcome. People v. Ward, 371 Ill. App. 3d 382, 434,
862 N.E.2d 1102 (2007), citing Strickland v. Washington, 466 U.S.
668, 687-94, 80 L. Ed. 2d 674, 693-98, 104 S. Ct. 2052, 2064-68
(1984).
“An attorney’s performance must be evaluated from counsel’s
perspective at the time the contested action was taken and will
be considered constitutionally deficient only if it is
objectively unreasonable under prevailing professional norms.”
People v. Bailey, 232 Ill. 2d 285, 289, 903 N.E.2d 409 (2009).
Courts must indulge in a “strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694,
104 S. Ct at 2065; People v. Edwards, 195 Ill. 2d 142, 163, 745
N.E.2d 1212 (2001). Mistakes in strategy or tactics alone do not
amount to ineffective assistance of counsel; nor does the fact
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that another attorney may have handled things differently. Ward,
371 Ill. App. 3d at 434, citing People v. Palmer, 162 Ill. 2d
465, 476, 643 N.E.2d 797 (1994).
A. Failure to Withdraw
Respondent contends defense counsel provided ineffective
assistance by failing to withdraw as counsel. Specifically,
respondent contends defense counsel had a duty to withdraw after
the trial court improperly denied funds for a DNA expert witness
and defense counsel realized he had no other means to obtain
funds to secure the witness.
Generally, decisions concerning which witnesses to call and
which evidence to present on a defendant’s behalf are viewed as
matters of trial strategy, which are generally immune from
ineffective assistance claims. People v. Hamilton, 361 Ill. App.
3d 836, 847, 838 N.E.2d 160 (2005).
Defense counsel made it clear during several status hearings
that he was investigating and conducting extensive research into
the State’s DNA evidence in order to adequately represent
respondent at trial. Defense counsel also subjected Aper to an
extensive and thorough cross-examination, stressing the fact that
the State’s DNA expert could not tell how the seminal fluid stain
got onto the swimsuit and that the stain could have been
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transferred onto the swimsuit if the suit had been dropped onto
some fluid on the ground or the victim sat in the fluid. Defense
counsel was also able to get the State’s expert to admit that DNA
statistics are actually based on how frequently you would find
that profile in the random population, not that it belongs to a
certain person.
Although we recognize a DNA expert could have potentially
strengthened respondent’s case, we cannot say defense counsel’s
decision not to withdraw after the trial court denied funds for
such an expert constituted ineffective assistance considering the
expert’s assistance would not necessarily have made his
conviction any less likely. See Hamilton, 361 Ill. App. 3d at
848 (“[Counsel] made it clear that he was diligent in
investigating [the expert’s] notes and reports and thoroughly
challenged his conclusions in an extensive cross-examination.
Had defendant called his own expert witness, with qualifications
and experience similar to those of [the expert], the circuit
court would not have been under any automatic obligation to
disregard [the expert’s] testimony or defer to that of
defendant’s expert and thus find for acquittal. Because the
testimony of an expert witness in favor of defendant would not
have made his conviction any less likely, we cannot find that
[counsel’s] representation was ineffective”).
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B. Other Ineffective Assistance Issues
Respondent contends defense counsel provided ineffective
assistance by almost violating a motion to exclude witnesses from
respondent’s trial. Specifically, respondent contends defense
counsel’s failure to keep respondent’s adoptive mother out of the
courtroom during respondent’s trial, in violation of a motion to
exclude witnesses, could have prevented her from being able to
testify. Respondent contends her presence in the courtroom also
undermined her credibility in the eyes of the court.
We note, however, that respondent’s adoptive mother was
actually allowed to testify by the trial court, even though the
State objected to her presence during the trial. Moreover,
nothing in the record supports respondent’s contention that the
trial court found her testimony less credible based on her
presence in the courtroom before testifying.
Respondent also contends defense counsel provided
ineffective assistance where he misunderstood the basic elements
of the offense of aggravated criminal sexual assault.
In support of his contention, respondent suggests defense
counsel incorrectly argued during respondent’s motion for a
directed finding and during closing argument that there was no
evidence of penetration–-a key element to the offense of
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aggravated criminal sexual assault–-because the victim testified
the offender had only rubbed his penis on the victim’s anus
without actual penetration. Respondent notes Illinois courts
have recognized that any contact, however slight, between the sex
organ or anus of one person and the sex organ, mouth or anus of
another person may constitute sexual penetration sufficient to
support an aggravated criminal sexual assault charge. See People
v. Bofman, 283 Ill. App. 3d 546, 552, 670 N.E.2d 796 (1996).
Respondent contends that because counsel misunderstood the basic
elements of the offense in arguing penetration had not occurred,
he effectively admitted to the sexual conduct necessary to
support respondent’s conviction.
Mistakes in strategy or tactics alone do not amount to
ineffective assistance of counsel; nor does the fact that another
attorney may have handled things differently. Ward, 371 Ill.
App. 3d at 434, citing Palmer, 162 Ill. 2d at 476. Moreover, we
note that in the interest of judicial economy, we may first
determine whether or not a defendant has suffered any prejudice
as a result of the alleged deficiency before ever determining
whether one exists. People v. Arna, 263 Ill. App. 3d 578, 586,
635 N.E.2d 815 (1994).
Given the overwhelming nature of the DNA evidence and the
victim’s unrebutted testimony regarding the circumstances of the
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attack, we fail to see how respondent’s ineffective assistance
claim suggest that, without such an error, a reasonable
probability exists that his trial would have resulted in a
different outcome. See Ward, 371 Ill. App. 3d at 434. The
victim’s testimony clearly established that the attacker rubbed
his penis on the victim’s anus twice. Such testimony clearly
supported the aggravated criminal sexual assault charges,
regardless of any comments defense counsel may have made. The
DNA evidence also established respondent’s identity as the
attacker beyond a reasonable doubt.
Because respondent is unable to establish any prejudice as a
result of the alleged deficiencies raised above, we find
respondent was not denied the effective representation of
counsel. See Arna, 263 Ill. App. 3d at 587.
CONCLUSION
We affirm the trial court’s judgment.
Affirmed.
FITZGERALD SMITH, and LAVIN, JJ., concur.
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