stating that “[a] reviewing court will not take judicial notice of critical evidentiary material that was not presented to and not considered by the fact finder during its deliberations.”
How later courts described this case
- stating that “[a] reviewing court will not take judicial notice of critical evidentiary material that was not presented to and not considered by the fact finder during its deliberations.”
Written by the judges who cited it.
The opinion
NOTICE
2025 IL App (5th) 220429-U
NOTICE
Decision filed 11/21/25. The
This order was filed under
text of this decision may be NO. 5-22-0429 Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Richland County.
)
v. ) No. 20-CF-46
)
KOLTON L. WISDOM, ) Honorable
) Matthew Joseph Hartrich,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE SHOLAR delivered the judgment of the court.
Justices Barberis and Vaughan concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for aggravated battery of a child is affirmed where (1) the
State’s presentation of four-year-old A.W. was harmless, (2) defendant failed to
demonstrate that counsel was ineffective for failing to present expert testimony,
and (3) the trial court conducted a proper preliminary Krankel hearing.
¶2 Defendant, Kolton L. Wisdom, appeals his conviction for aggravated battery of a child.
This case returns to this Court following a remand for further proceedings pursuant to People v.
Krankel, 102 Ill. 2d 181 (1984). See People v. Wisdom, No. 5-21-0244 (2022) (unpublished
summary order under Illinois Supreme Court Rule 23(c)). Back on appeal before us, defendant
raises three issues. First, he contends that the trial court abused its discretion by allowing the State
to present four-year-old A.W. as a “live-exhibit” in the courtroom during her grandmother’s
testimony, because her presence was irrelevant and the prejudicial effect of A.W. entering the jury
1
box and interacting with the jurors outweighed any probative value of her presence at trial. Second,
defendant argues that defense counsel provided ineffective assistance where she failed to retain a
medical expert to rebut the State’s medical evidence and to confront the State’s medical experts
with relevant professional literature regarding the unreliability of shaken baby syndrome and
abusive head trauma. Finally, defendant argues that he demonstrated that defense counsel
neglected his case during the Krankel inquiry. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 On or about February 11, 2020, the State charged defendant by information with
aggravated battery in violation of section 12-3.05(b)(1) of the Criminal Code of 2012. 720 ILCS
5/12-3.05(b)(1) (West 2018). The information alleged that, on or about February 6, 2020,
defendant committed a battery and knowingly and without legal justification caused great bodily
harm to A.W., who was a child under the age of 13, in that defendant shook or threw A.W., causing
brain damage.
¶5 Defendant proceeded to a jury trial beginning on June 14, 2021. Following jury selection,
the State presented its evidence. Prior to the jurors arriving, defense counsel brought to the trial
court’s attention that the State intended to have the minor victim, A.W., brought in and identified
by their first witness. Defense counsel objected to this based on “relevance.” Defense counsel
argued that she did not believe that “having that witness identify the minor is relevant in this case.”
Rather, “it would be done to elicit sympathy from the jury and that it would be prejudicial to my
client.”
¶6 The State responded and argued that the jury viewing A.W. was “a cornerstone of this
case.” The State explained that she was “the child that will be discussed at length in this case” and
2
it was important for the jury to see “her injuries now and what she’s facing.” The trial court
overruled the objection and allowed the State to proceed.
¶7 Following opening statements, the State proceeded with their first witness, Heather Curtis.
Curtis testified that she had one grandchild, A.W., born on December 14, 2016. A.W. was the
daughter of Curtis’s son, Dylan Willard, and Jasmine Parrish.
¶8 A.W., Dylan, and Parrish lived with Curtis from the time of A.W.’s birth until November
of 2019. Curtis testified that while A.W. resided in her home, A.W. was a “typical baby.”
Following Dylan and Parrish breaking up, Parrish and A.W. moved in with Parrish’s sister, her
sister’s boyfriend, and defendant. A.W. and Parrish resided at her sister’s residence for
approximately one month. Parrish and defendant then moved into an apartment in Noble, Illinois,
with A.W. During this time, Parrish and Dylan were in a custody dispute.
¶9 Curtis was aware that Parrish was in a dating relationship with defendant. Curtis was
“worried” about defendant babysitting A.W. while Parrish worked. Curtis saw A.W. on January 1,
2020, when Curtis was “given short notice” to meet A.W. at the park. Curtis and Dylan, along with
other family members, “rushed at the opportunity to see her” at the park. They visited with A.W.
for approximately an hour and a half. Parrish and defendant remained nearby, playing basketball.
¶ 10 Curtis saw A.W. on January 26, 2020, at a Mexican restaurant. Curtis observed a “goose
egg” on A.W.’s forehead. A.W. also had a bruise on her cheek. A.W. had a phone and she “brought
it up to her face really close to see it.” Curtis’s husband advised Parrish that it seemed that A.W.
had an issue with her vision. Parrish indicated that she would take care of it. Curtis never noticed
A.W. had vision difficulties prior.
¶ 11 Parrish allowed Curtis to take A.W. home with her that same day. A.W. stayed with Curtis
and Dylan until January 29, 2020. A.W. became ill while staying with Curtis. Curtis took A.W. to
3
Carle Convenient Care on January 29. While at the doctor’s office, Curtis expressed concern to
care providers about bruises on A.W.’s cheek, chin, thighs, and feet. The physician “called it in”
to the Department of Children and Family Services (hereinafter “DCFS”).
¶ 12 Curtis received a call from a DCFS investigator on February 5, 2020. On February 6, 2020,
Dylan received a phone call saying that A.W. was hurt and on the way to the emergency room.
Curtis, Dylan, and Curtis’s husband, went straight to the emergency room. Curtis observed A.W.
being removed from the ambulance. A.W. was pale and bruised. A.W. was transferred to Carle
Hospital in Champaign. Upon her arrival at Carle, A.W. received emergency brain surgery,
because her brain was swollen. At the end of February 2020 A.W. was transferred to Ranken
Jordan, a rehabilitation hospital for children. Curtis and Dylan took shifts staying with A.W. Curtis
testified that defendant did not come to the emergency room, although Parrish “eventually”
arrived.
¶ 13 The State introduced People’s Exhibit 1, photos that Curtis took on February 7, 2020, of
A.W. Curtis described the photo, noting that A.W. had a bandage on her skull, along with a drain
“so that any blood or anything will come out and not sit there.” A.W. was on a ventilator for
breathing purposes. A.W. had IVs, a blood pressure cuff, heart monitor, and catheter. A.W. was in
a medically induced coma at this time. State’s Exhibit 2 was a similar photo which demonstrated
that A.W. had a feeding tube.
¶ 14 The State introduced People’s Exhibit 3, a photo taken approximately a week after the
incident. A.W. was not covered in blankets, as she had a fever and needed cooling blankets. Her
head bandage was removed, and stitches were visible on her skull. People’s Exhibit 4 was a
photograph depicting the skull fracture which was sutured shut.
4
¶ 15 On February 14, 2020, A.W. began to open her eyes. People’s Exhibit 5 was a photo of
A.W. with her eyes open, holding hands with Dylan. Curtis testified that A.W. was not able to use
her right arm. Prior to the incident, A.W. did not have any mobility issues with her right arm. At
the time of Curtis’s testimony, A.W. still did not use her right arm. A.W. suffered a stroke
immediately following the incident, which impacted mobility on her right arm.
¶ 16 Curtis testified that A.W. required physical therapy, occupational therapy, and speech
therapy three days per week. A.W. attended a special education preschool, where she received
additional therapies. A.W. required future surgeries, including another brain surgery and plastic
surgery.
¶ 17 The State introduced People’s Exhibit 6, a photo of A.W. with Dylan. The photo was taken
at the end of February 2020 when A.W. transferred to Ranken Jordan. A.W. was in a customized
wheelchair. A.W. wore a helmet to protect her brain. At Ranken Jordan, A.W. received physical
therapy, occupational therapy, and speech therapy, “basically daily.”
¶ 18 The State introduced People’s Exhibit 26, a photo of A.W. and her grandpa, Curtis’s
husband. The photo was taken before the injury, around October of 2019. In the photo, A.W. held
a sippy cup with her right hand. Curtis testified that prior to the incident, A.W. was right-handed.
However, after the incident, A.W. could only use her left hand.
¶ 19 Upon her release from Ranken Jordan on April 23, 2020, A.W. resided with Curtis and her
son, Dylan. At the time of trial, A.W. was four years old. A.W. attended elementary school in the
special education program. Curtis testified that A.W. was “not the same” following the incident.
¶ 20 Following this testimony, the State asked for the witness to identify A.W. The following
took place:
Q. Heather, is [A.W.] in the courtroom today?
5
THE MINOR, A.W.: Hi, Grammy.
A. That’s my [A.W.]
Q. Could you please identify her by an article of her clothing?
A. I’m sorry?
Q. Could you please identify her by an article of her clothing?
A. I see her with love on her—on her dress.
THE MINOR, A.W.: Hi.
[The State]: Your Honor, if the record could reflect [A.W.]’s in the courtroom.
THE COURT: The record will reflect identification.
[The State]: Thank you.
THE COURT: Let’s keep her back away from the jury.
THE MINOR, A.W.: Hi, Grammy.
THE WITNESS: Can I have a big kiss? No kisses?
THE COURT: Mr. Willard, if you’ll get her.
[The State]: Your Honor, the State would rest with Heather Curtis.
[Defense Counsel]: May we approach, Your Honor?
THE COURT: Yes.
(Off the record discussion.)
¶ 21 Following a lunch recess, defense counsel stated:
[Defense Counsel]: Yes, Your Honor. I would just ask the court—before
we broke, we were ending with the testimony of Heather Curtis, and the minor,
[A.W.], came in and was identified. And just so that we have a clear record, I would
just ask the court—and, Your Honor, if you might just state briefly what you
witnessed when the minor came in.
THE COURT: Okay. What happened was I believe she was brought in by
her father, Dylan Willard. I think he was trying to walk her over, and she indicated,
6
physically, it appeared to me, that she wanted put down. So he put her down, and
she walked over towards the witness, and was identified by the witness. After she
was identified, she did walk over towards the jury box and walk around the jury
box. And I believe that—in order to avoid any type of inappropriate sympathy, I
requested the father to get the minor child and take her back because the occasion
had already occurred.
¶ 22 The court asked defense counsel whether he offered “an accurate summary.” Defense
counsel indicated that the court’s observations were correct.
¶ 23 The State next called Loren Damien Wingert. Wingert worked for Carle Arrow Ambulance
in Olney, Illinois, as a licensed paramedic. Wingert responded to a call in Noble, Illinois, for a
three-year-old female “who fell out of the tub” and was “not acting appropriately.” When Wingert
arrived on-scene, defendant was present with A.W. A.W. was “lying just inside the door on the
couch” in the living room “wrapped up in a blanket.” Wingert observed “a number of bruises and
two hematomas on her head.” One hematoma was above the right eye, and one was on the back of
the head on the left side. Wingert explained that a hematoma “is similar to a bruise with associated
swelling.” A.W. was “unresponsive” to first responders.
¶ 24 Wingert testified that defendant reported that the “puppy at the residence knocked her over
causing her to fall, bump her head, and she began not acting right.” Wingert described defendant
as acting nervous and anxious. Defendant “was pacing, kind of running his hands through his hair,
and sweating very profusely for it being a February day.”
¶ 25 Wingert obtained vitals from A.W. A.W. had a dilated left pupil and a constricted right
pupil. Winger testified that unequal pupils were indicative of neurological injury. A.W. began
having “seizure-like activity” and “posturing.” Wingert explained that posturing “is also indicative
of neurological injury.” Wingert testified that when posturing occurs, the body will curl inward on
itself. Wingert requested the sheriff’s office to respond, and Wingert moved A.W. to the
ambulance.
7
¶ 26 In the ambulance, Wingert placed an IV and a ventilating bag valve mask. First responders
administered medication to relax A.W.’s airway in order to maintain an open airway for A.W.
Wingert observed other injuries on A.W.’s body, including bruises on the right temple, pelvic
arches, tops of feet, and palms of her hands. Wingert prepared a report in reference to his response,
and he also prepared a diagram showing the injuries to A.W.’s body, which the State introduced
as People’s Exhibit 7.
¶ 27 Wingert returned to the residence “in anticipation of finding one of the two deputies on
scene to discuss [A.W.]’s presentation, her injuries not lining up with the story that we were
provided.” Upon arriving inside, Wingert only observed defendant. Defendant was in the bathroom
“kneeling by the toilet, crying and dry heaving into the toilet bowl.”
¶ 28 On cross-examination, Wingert testified that Parrish arrived around the same time that
emergency responders arrived. Parrish rode in the ambulance to the hospital with the first
responders.
¶ 29 The State next called Robert Sakowicz. At the time of the offense, Sakowicz worked as a
general investigator at the Richland County Sheriff’s Office for approximately five and a half
years. Sakowicz was the investigator for A.W.’s case. Sakowicz responded to the scene of the
incident. Upon arrival, the ambulance crew was on scene “carrying a young girl out of the
residence and to the ambulance.” Sakowicz entered the ambulance “to see the status of the child”
and he observed her in distress with “bruising over a large portion of her body” including “her
face.”
¶ 30 Sakowicz entered the residence with Captain Mike Bertin to speak to the subject inside of
the home. Sakowicz contacted defendant, who advised him that he was preparing a bath for A.W.,
and A.W. was pushed over by a dog. As a result, A.W. “fell over and hit her head on the bathtub.”
8
Defendant advised Sakowicz that A.W. hit the back of her head, not the front of her head. Sakowicz
testified that there was a dog in the home, but the dog did not jump on anyone during the
investigation.
¶ 31 Based upon his observations and experience, Sakowicz testified that defendant’s story was
not consistent with the scene. Sakowicz testified that “the amount of bruising that I observed before
I even started talking to him, that was more bruising than I have ever seen on any children that I
have come into contact with during my work or at any other point in time during my life.”
Moreover, Sakowicz did not believe the “pain and distress that [A.W.] appeared to be in in the
ambulance” was indicative of a “simple fall back from being pushed over” as defendant described.
Upon obtaining a warrant, Sakowicz took photographs of the home. Sakowicz also subpoenaed
Facebook records for the accounts of defendant and Jasmine Parrish.
¶ 32 The State next called Captain Mike Bertin from the Richland County Sheriff’s Office.
Captain Bertin dispatched to a 911 call in Noble, Illinois, for “a small child that wasn’t acting
right.” Upon his arrival, Sakowicz was present at the scene. The ambulance crew informed Captain
Bertin that “the child was covered in bruises and that the male babysitter was still inside and
throwing up into the toilet.” Captain Bertin did not talk to defendant, and Captain Bertin did not
observe the child. Captain Bertin observed a dog in the home, and he testified that it was “small”
and “about a foot tall.” Captain Bertin testified that the dog did not jump on anyone in the home
that he could recall.
¶ 33 Captain Bertin drove the ambulance to the hospital. Captain Bertin testified that he
observed the child upon arrival at the hospital. Captain Bertin observed “more bruises on her body
than I’ve ever seen on anybody.” Specifically, Captain Berin observed “bruising on top of her feet”
9
which was “an odd place to bruise.” On cross-examination, Captain Bertin testified that Jasmine
Parrish was also arrested.
¶ 34 The State next called William Jennings. Jennings worked as a registered nurse in the
emergency room at Richland Memorial Hospital. On February 6, 2020, Jennings provided
treatment to A.W. Jennings prepared a medical record documenting his findings and care. Jennings
testified that such a record is normally kept in the course of nursing. The State introduced People’s
Exhibit 23, a copy of the emergency department record for A.W., prepared by Jennings. In the
report, Jennings noted that there was evidence of abuse or neglect, and that the patient was in
“severe distress.” Jennings reported that there “were multiple bruises to the feet, hands, head, hips,
and thighs.” Jennings photographed the bruises, which were admitted as People’s Exhibits 13
through 17, with no objection from defendant.
¶ 35 Jennings testified that upon A.W.’s arrival to the hospital, there was “no response from the
patient” based on a lack of eye activity, verbal activity, and motor activity. Jennings testified that
this suggested life-threatening seriousness. Jennings testified that based on his experience, it was
his opinion that the injuries were intentionally inflicted upon A.W. Jennings based his opinion on
the bruising on A.W.’s body. He also noted that A.W. presented with “posturing” which was
indicative of a traumatic brain injury. On cross-examination, Jennings testified that he was unable
to determine the age of the bruises on A.W.’s body. Defense counsel also got Jennings to admit
that he could not make a “judgment call” on how A.W. received the injuries.
¶ 36 The State next called Sergeant Andrew Smith from the Illinois State Police. At the time of
the incident, Sergeant Smith was the commander over the Child Death Investigative Task Force in
the Violent Crimes Unit. Detective Sakowicz reached out to Sergeant Smith regarding A.W.’s
case. Sergeant Smith sent crime scene investigators to the scene, and Special Agent Tim Brown
10
and Special Agent Travis Rinehart responded to assist with interviews. Sergeant Smith assisted
Detective Sakowicz with a forensic examination of defendant’s cell phone, and he assisted with
the search warrant for Facebook records.
¶ 37 Sergeant Smith testified about Facebook messages sent between defendant and Jasmine
Parrish. On January 3, 2020, defendant sent Parrish a message that said “I just had to beat your
child. I apologize but she was screaming no, no, no because she didn’t want a bath.” Parrish
responded to defendant’s message, and defendant said, “I was going to record you and show you
because she was just throwing a fit and kicking and screaming. I whipped her pretty hard, baby. I
don’t think she’ll do it again.” In another message to Parrish, defendant said, “Bro, your kid is the
spawn of Satan.” On January 4, 2020, defendant sent Parrish a message that stated, “she’s
possessed by Lucifer himself.” On January 4, 2020, Sergeant Smith testified about the following
Facebook message exchange between defendant and Parrish:
“Starting at the top here, Kolton sends Jasmine a message at 3:06 that says,
She pooped. And Jasmine—and then Kolton—let me back up. Jasmine sends a
message, She pooped. Kolton responds, Oh, do you need a diaper? Then Kolton
responds, Make sure her butt is okay, too. Jasmine states, Yes, I do. And her butt
looks bad. Kolton says, I know the red marks on the inside of her cheeks are from—
if from sitting on the broccoli, though. I’ll be there in a lil. Sorry, babe. Kolton
again states, I told her I was sorry, babe. I’m saying sorry to you, too, though. She
was acting ridiculous though. Jasmine responds, I believe you, but she cannot have
marks on her. That’s why she has to have a diaper or you put her in time out. She’ll
be fine though. And Kolton responds, I know she can’t, and it’s not fine though. I
really feel bad. Kolton further states, Please don’t leave me. Jasmine responds,
Baby, I’m not mad. I’m not gonna leave. Kolton replies, I’m mad. Jasmine replies,
Why, baby? And Kolton states, I shouldn’t have let her make me mad like that. You
say it all the time. She’s only three. Jasmine states, I get mad at her, too. Jasmine
states, Where are you? Kolton states, Yeah, but you don’t beat her. And I’m still at
the gym, baby. Kolton states, I have Mace—I’m—I have Mace I ride I’m waiting
for him to finish up. And I don’t literally beat her.”
11
¶ 38 Sergeant Smith also testified about text messages recovered from defendant’s phone. On
January 15, 2020, Sergeant Smith testified that the following text message exchange occurred
between defendant and Parrish:
“Jasmine tells—states to Kolton, Don’t be rude. Kolton responds, I might
kill your kid. Jasmine responds, What’s wrong? Kolton states, Just not being an ass
fuck LOL. Jasmine states Oh my God. Kolton responds, She’s ridiculous
sometimes. Jasmine states, I know she is, baby. Kolton states, She jumped on me
and her mouth hit my head, so her lip is swollen again.”
On January 16, 2020, defendant sent Parrish a text message stating, “Send me a voice message if
you telling [A.W.] to go potty or you might have a dead child.”
¶ 39 The State next called Jasmine Parrish, A.W.’s mother. Parrish testified that she had one
child, A.W., who lived with her dad, Dylan, in Olney, Illinois. Parrish testified that prior to the fall
of 2019, A.W. was “happy all the time” and enjoyed playing with other children. In November
2019 Parrish moved out of the home she shared with Dylan and his parents following their break
up. Parrish and A.W. moved in with Parrish’s sister for approximately one month.
¶ 40 Parrish moved to Noble, Illinois, with A.W. and defendant was “staying there” “[p]retty
much all the time.” Parrish worked at Emerald Glen full-time as a CNA. Defendant did not work,
and he watched A.W. while Parrish worked. Defendant communicated with Parrish through
Facebook messenger or text message while she was at work.
¶ 41 Parrish testified that defendant spanked A.W. as discipline. Parrish “didn’t think spanking
was a very good option.” Parrish testified that defendant spanked A.W. during the process of potty
training if A.W. had an accident. Parrish testified that she was not aware of defendant being
physical with A.W. outside of spanking. Parrish “was trying to get him to watch her a little bit
carefully so she wouldn’t have this happen to her.”
12
¶ 42 Parrish testified that there were concerns about A.W.’s vision. A.W. had a vision test at her
daycare, which indicated that A.W. needed glasses. Parrish set up a vision appointment for A.W.
¶ 43 On February 6, 2020, Parrish was scheduled to work from 11 a.m. until 7 p.m. After
oversleeping, Parrish “rushed to get ready and leave” for work. Around 1 p.m., defendant called
Parrish “panicking.” Defendant told Parrish that she “needed to leave work and come home
immediately” because A.W. “wasn’t acting right.” Defendant video called Parrish, and Parrish
observed defendant “holding her in his arm, and she just kind of fell over, like, her head was just
kind of limp and she wasn’t moving.” Parrish left work and called an ambulance.
¶ 44 Parrish arrived home at approximately the same time that the ambulance arrived. Parrish
entered the home and observed defendant carrying A.W. and placing her on the couch. A.W.
appeared to be having a seizure. Parrish testified that A.W. was “jerking a lot” and “just was
staring.” Parrish testified that A.W. was either in a diaper or only in a towel, because she got a
bath. Parrish testified that it was not normal for A.W. to take a bath at this time of day.
¶ 45 Parrish testified that she and defendant recently got a puppy. She testified that the puppy
was a Blue Heeler, and it was not very excitable. Parrish testified that the puppy was shy and
skittish.
¶ 46 The EMTs moved A.W. to the ambulance and offered Parrish to ride in the ambulance with
A.W. Parrish was not advised about the extent of A.W.’s injuries until the following day. Parrish
“knew that she had a seizure and her brain was swelling.” However, she did not know until the
day after the incident “that her skull was fractured.” Most communication from hospital staff went
to Dylan and his family.
13
¶ 47 Parrish testified that she had criminal charges pending against her for aggravated assault
based on a theory of accountability stemming from the injuries to A.W. The State did not make
any promises to Parrish for her testimony.
¶ 48 Parrish testified that she observed defendant get frustrated with A.W. She observed him
“spank her” “with a diaper on.” She did not observe defendant “hit her” “in the face or any of
that.” Parrish testified that there were instances where defendant would tell her by either text
message or Facebook messenger that A.W. had a fall or an accident. Parrish testified that there
was an instance where defendant said that A.W. used the bathroom and fell off the toilet. A.W.
allegedly hit her face on a space heater in the bathroom, and A.W. had a bruise below her left eye.
¶ 49 From the time A.W. was born until November 2019 Parrish testified that A.W. was not
frequently bruised. From November 2019 through February 2020 Parrish testified that there were
more bruises on A.W. On February 6, 2020, Parrish testified that A.W. had a “busted” lip “from a
fall he said she had.” Parrish testified that if A.W. “had a bruise or something had happened,
[defendant] always, like, was able to tell me what exactly had happened, and I just believed what
he said.”
¶ 50 Parrish read the above-referenced text messages and Facebook messages, and she testified
that at the time she received the messages, she did not think that defendant “was being serious.”
However, at the time of trial, Parrish testified, “I think he was being serious.” On cross-
examination, regarding the text messages and Facebook messages, Parrish testified that she
believed defendant was joking or being sarcastic in his messages about A.W.
¶ 51 The State next called Dr. Peter McCool, an emergency medicine physician. Dr. McCool
was qualified as an expert witness with no objection from defense counsel. Dr. McCool treated
A.W. on February 6, 2020, at Richland Memorial Hospital. A.W. arrived in critical condition. She
14
received a CAT scan at the hospital, which showed a left hemispheric subdural hematoma. Dr.
McCool testified that A.W. was deemed “critical” because “of the extensive brain injury found in
the CT scan[,]” and “extensor posturing, which signifies significant neurological injury that’s
typically immediately preceding death.” A.W. had “fixed and dilated” pupils which was “generally
an early sign that the brain is being actively squeezed out of the skull because of pressure, usually
due to bleeding” and “injury.”
¶ 52 Dr. McCool noted bruising to the chin, bruising to the right, central forehead, and a large
hematoma on the back of A.W.’s skull. There were injuries to both the front of the forehead and
the back of the head. Dr. McCool noted in his report that the injuries were due to “non-accidental
trauma.” Specifically, Dr. McCool noted that the hematoma to the back of the head “could happen”
if a dog jumped on a child. However, the bruise on the chin and bruise on the forehead “would not
be consistent with a dog jumping on a child and knocking the child over.”
¶ 53 On cross-examination, defense counsel adduced that the hematoma to the front of the head
on the right forehead was not a fresh hematoma. Dr. McCool testified that the bruises on A.W.’s
body were in various stages of healing. Defense counsel established that the bruise on the chin
likely happened at a different time than the bruise on the forehead. Dr. McCool noted that A.W.
had a hematoma on the back of her head that appeared to be fresh. Dr. McCool testified that either
the injury to the chin or the back of the skull could have caused the bleeding to the brain. Dr.
McCool testified that A.W. never had a skull fracture. Turning to the bruises on A.W.’s hands and
feet, Dr. McCool testified that the bruises were in various stages of healing and most likely did not
occur on February 6.
¶ 54 The State next called Dr. Balasubramanyan Napa, a pediatric intensive care physician. Dr.
Napa was qualified as an expert witness in the “field of medicine” with no objection from defense
15
counsel. Dr. Napa treated A.W. at Carle Hospital in Urbana, Illinois. Upon A.W.’s arrival to Carle,
she was “comatose” with “breathing tubes” and “asymmetric pupils.” Dr. Napa explained that this
occurs when there is “pressure inside the skull[,]” which resulted in A.W. requiring a
“decompression craniectomy.” A surgical team removed part of the skull in order to relieve
pressure. Dr. Napa “received” A.W. following her surgery. Dr. Napa observed bruises on A.W.’s
body and noted that A.W. was “unresponsive in a coma.”
¶ 55 After approximately one week, Dr. Napa testified that A.W. improved with movement on
her left side and occasionally opened her eyes. However, the pupils remained asymmetric, and
A.W. still had “significant swelling.” A.W. remained on a ventilator. Dr. Napa’s report noted that
A.W.’s injuries were “consistent with nonaccidental trauma.” He testified that DCFS was aware,
and a child abuse team would follow up.
¶ 56 Dr. Brent Reifsteck, a pediatric hospitalist at Carle Hospital in Urbana, Illinois, next
testified. Dr. Reifsteck was qualified as an expert witness in the field of medicine, specifically
pediatrics, with no objection from defense counsel. Dr. Reifsteck examined A.W. on February 7,
2020. He determined that A.W. suffered “a case of abusive head trauma” which was an “inflicted
injury.” Dr. Reifsteck based this determination on A.W.’s bruising, “retinal hemorrhages in the
backs of her eyes,” and “subdural hemorrhage inside her skull.” Dr. Reifsteck also testified that
the “history in this case” did “not match the injuries.”
¶ 57 To determine whether A.W. suffered from abusive head trauma, Dr. Reifsteck testified that
a study recommended that physicians look at six criteria: “apnea or cessation of breathing,
seizures, bruising, retinal hemorrhages, long bone fractures, and rib fractures.” Dr. Reifsteck
testified that four of the criteria were present in A.W.’s case. Dr. Reifsteck testified that the study
was “duplicated or replicated” with more specific criteria in 2018, which set forth seven criteria:
16
“respiratory compromise, hypoxic brain ischemic encephalopathy, subdural hemorrhage,
abnormal skeletal survey, abnormal retinal exam, complex skull fracture, and bruising in the—on
the torso, ears, or neck.” Of the seven criteria, Dr. Reifsteck testified that A.W. exhibited five.
Therefore, Dr. Reifsteck testified that there was a 99.99% chance that her injuries were sustained
from abusive head trauma.
¶ 58 Turning specifically to retinal hemorrhages, Dr. Reifsteck testified that an ophthalmologist
examined A.W.’s retinas. The ophthalmologist determined that there were retinal hemorrhages in
the back of the eye “that were extensive in all of the layers of the retina” and “too numerous to
count” in both eyes. Dr. Reifsteck testified that “we really do not see that in medicine outside of
abusive head trauma.” He testified that retinal hemorrhages may happen in children from motor
vehicle accidents, but not from “short falls.”
¶ 59 Dr. Reifsteck also based his conclusions on the bruising on A.W.’s body. He testified that
A.W. had approximately 12 bruises on her body, and some of the bruises were in locations that are
suspicious for abuse such as the neck and torso.
¶ 60 On cross-examination, defense counsel established that Dr. Reifsteck was not a “treating
physician” for A.W. Rather, he was a consulting physician who reviewed what other physicians
have done, and he formed his opinion based on that. Defense counsel established that retinal
hemorrhaging could occur outside of abusive head trauma. The following exchange occurred:
Q. So I guess just to—in simple terms, you can’t say what happened to her?
A. Yeah. I can’t say exactly what happened. All we know is this, you know,
matches up with known—you know, known observed or recorded events that are
abusive head trauma, and, you know, matches up with our scientific published
papers that indicate that.
Q. Okay. But there would be instances of causes of an accidental injury—
that a person could have injuries like [A.W.] that would not be intentional. It’s
possible?
17
A. It’s possible. Yeah.”
¶ 61 Following Dr. Reifsteck’s testimony, the State rested. Following admonishments,
defendant testified. Defendant testified that he fathered twins when he was 16 years old. Defendant
and the mother of his twins broke up after approximately three years together, and defendant had
limited contact with his twin daughters. Defendant did not graduate from high school.
¶ 62 Defendant and Parrish had a brief high school romance. The two reconnected around
November of 2019. Defendant began to babysit A.W. while Parrish worked. At the time, A.W.
was three years old and potty training. Defendant testified that it was “frustrating at points.”
Regarding the text messages, defendant said that he “didn’t mean” them. Defendant testified that
he spanked A.W. on “[n]o more than four” occasions, however, he left a mark on at least one
occasion.
¶ 63 On February 6, 2020, defendant testified that he woke up around 8:30 in the morning.
Parrish was still asleep, and she ultimately received a phone call around 11:30 in the morning that
she was late for work. Parrish rushed to work. Defendant stayed home with A.W. He told A.W. to
clean her room, and around 1 o’clock in the afternoon, defendant ran A.W. a bath.
¶ 64 Defendant and Parrish recently adopted a blue heeler puppy, which was “[n]ot a very big
dog.” While getting A.W. ready for her bath, the dog entered the bathroom. The dog jumped on
A.W. which defendant described as “just a little hop.” A.W. “kind of fell back and hit her head”
but defendant was not concerned. A.W. did not react, nor did she cry. Defendant placed A.W. in
the bathtub and left the room to get something to eat. Defendant testified that he was gone for
approximately thirty seconds. When defendant returned, he noticed that A.W. was not responsive
to him. He testified that her eyes were not focused, and she went “limp in the tub.” Defendant
removed A.W. from the bathtub, and he believed she may be having a seizure.
18
¶ 65 Defendant testified that he called Parrish, and then video called her, to advise her of A.W.’s
condition. Parrish told defendant to take A.W. to the hospital. Defendant testified that after getting
off the phone, he tried to get A.W. to relax, however, her lips turned blue and she continued to
seize. Defendant did not call 911. Defendant testified that he knew that an ambulance was on the
way. In approximately 15 to 20 minutes, an ambulance arrived.
¶ 66 Defendant was “worried sick” and almost threw up in the bathroom. He remained in the
home with law enforcement. Defendant told law enforcement “what happened” and gave them his
cell phone. Defendant went to the police station. Defendant remained at the police station for
approximately four hours.
¶ 67 Defendant testified that A.W. obtained a bruise on her forehead from falling off the toilet.
Defendant testified that the bruise on A.W.’s chin occurred when “she was running out of the room
and hit her foot on the edge of the doorway and just kind of, just biffed it.” Defendant indicated
that this occurred three or four days prior to the incident. Law enforcement took defendant to a
friend’s house. Defendant called Parrish, who advised that A.W. was in surgery. Defendant
testified that he cried as he spoke to Parrish, “and that was the last time I ever talked to” Parrish.
Defendant tried unsuccessfully to contact Parrish in the days that followed.
¶ 68 Defendant testified that he had no phone, no car, no job. He returned to his parents’ home
in Indiana. From there, defendant went to North Dakota to stay with his sister and grandma.
Defendant was ultimately arrested in North Dakota.
¶ 69 On cross-examination, defendant testified that he said things that he did not mean but he
would “never overreact” in a “violent way.” Defendant testified that he did not recall seeing
bruising on A.W.’s body. Defendant stated that he got “frustrated” while babysitting but would
19
“vent” to Parrish through text message. The State confronted defendant with his text and Facebook
messages. Defendant rested, and the State offered no rebuttal.
¶ 70 Following jury instruction conference, attorneys proceeded to closing argument. Relevant
to this appeal, defense counsel argued that the jury’s task was to determine whether defendant
inflicted great bodily harm to A.W. on February 6, 2020. Specifically, defense counsel argued that
the jury should focus only on the brain bleed and not on any bruising on A.W.’s body that took
place in “separate incidences.” Counsel argued that defendant was “not on trial for those bruises.”
Rather, counsel focused on the “hematoma on the back of her head” that occurred on February 6.
¶ 71 Turning to the head injury, defense counsel argued that the State failed to prove that
defendant “knowingly did something to” A.W. Counsel argued: “we haven’t heard any evidence
from anyone that [defendant] did anything. Nobody said he threw her. Nobody said he pushed her.
I mean, nobody said what he did because he didn’t do anything.” Counsel argued that defendant
cooperated with law enforcement and willingly gave them his phone.
¶ 72 Counsel argued:
“She fell and she hit her head on the bathtub. You’ve heard no other
evidence or no other explanation at all all week from anyone explaining how this
happened. What they’re doing is they’re looking and they’re saying, well, he sent
those text messages and she had those bruises, so this isn’t an accident. But they
didn’t tell you what it did, what it was then.”
¶ 73 Following arguments, the trial court instructed the jury. The jury returned a verdict of guilty
for aggravated battery of a child.
¶ 74 Defendant filed a motion for judgment notwithstanding the verdict or a new trial. Relevant
to this appeal, the motion for a new trial alleged that the trial court erred by allowing A.W. to enter
the courtroom during the testimony of the State’s witness, Heather Curtis, over objection of
defendant, and defense counsel erred by failing to obtain an expert to testify on behalf of defendant.
20
Turning to his argument related to A.W., specifically, the motion indicated: “when the minor child
was brought into the court room over the defendant’s objection, the minor child was allowed to
walk up to the witness on the stand and interact with the witness and the child walked into the first
and second row of the jury box interacting with multiple jurors, which caused undue prejudice to
the defense in this case and barred the Defendant from a fair and impartial trial.”
¶ 75 The trial court held a hearing on the motion. Defense counsel stood on her motion. The
trial court denied the motion. Relevant to this appeal, regarding A.W. interacting with the jury, the
trial court stated, “the Court immediately ended any interaction as quickly as possible, and I believe
there was a record concerning what happened.” Regarding defense counsel failing to obtain an
expert witness, the court stated that this was “trial strategy of the defendant.”
¶ 76 On July 29, 2021, the trial court sentenced defendant to 30 years in prison. On August 5,
2021, defendant filed a motion to reconsider sentence which was denied the same day. On August
10, 2021, defendant filed a timely notice of appeal.
¶ 77 Defendant appealed, arguing before this court that defense counsel’s motion to reconsider
contained an allegation that defendant claimed that counsel had rendered ineffective assistance by
failing to obtain an expert medical witness to testify on his behalf. The motion was denied
following a hearing and defendant appealed. See People v. Wisdom, No. 5-21-0244 (unpublished
summary order under Illinois Supreme Court Rule 23(c)). This court granted defendant’s motion
for summary relief and remanded to the trial court for a preliminary inquiry into his claims of
ineffective assistance of counsel. Wisdom, No. 5-21-0244 (2022) (unpublished summary order
under Illinois Supreme Court Rule 23(c)).
¶ 78 On May 24, 2022, the trial court conducted a preliminary Krankel hearing. The trial court
noted that it “reappointed” defense counsel for the preliminary hearing “to make a determination
21
as to whether or not additional counsel should be appointed on the issue.” Defendant first argued
that defense counsel failed to obtain a medical expert on his behalf. The court asked defense
counsel whether she discussed obtaining an expert witness with defendant. Defense counsel stated,
“it was something that me and [defendant] did speak about a couple different times, and,
ultimately, as part of the trial strategy, I did not think in the end when we went to trial that it was
necessary to have a medical expert.” Defense counsel continued:
“[T]he fact of what the injuries were I didn’t feel like was in question or what
was contested. The injuries were what they were. It was not did that injury occur,
and I didn’t believe that an expert—because there was no way to determine how
the injury occurred, and I felt like if we attempted to obtain an expert, it might not
have gone favorably, then that was—we’d have to disclose that to the State, and
that it could possibly be something that backfired.”
¶ 79 Defense counsel further elaborated:
“I felt like with cross-examination of the medical doctors and some of the
other people that the State put on, we were able to bring out that they couldn’t
determine what caused the injury either, which would essentially be the same thing
if we put on an expert as well, and that—sometimes I think it’s better when you
have a jury if you don’t—if it’s not the same thing over and over and over again.”
¶ 80 Defendant had no other allegations of ineffective assistance. The trial court noted that it
intended to review case law and the transcripts concerning the medical testimony. The court took
the matter under advisement and noted that it would “issue a written ruling through docket entry.”
¶ 81 On June 21, 2022, the trial court entered an order on defendant’s claim of ineffective
assistance of counsel by docket entry. The docket entry stated:
“The Court questioned Defendant concerning his claims of ineffective
assistance of counsel at the preliminary Krankel hearing conducted on May 24,
2022. Defendant claims that his attorney was ineffective because she failed to
secure a medical expert to testify on his behalf in his case. His attorney asserted
that this was a matter of trial strategy and that she was concerned that having
another medical expert review the medical information could result in another
medical expert testifying against her client rather than in her client’s favor.
22
Even in a preliminary Krankel inquiry, the Court is allowed to consider the
merits of Defendant’s claim in its entirety. People v. Roddis, 2020 IL 124352, 161
N.E. 3d 173, 182-83 (2020). Furthermore, the decisions as to which witnesses to
call and what evidence to present are trial strategy decisions that are normally
immune from ineffective assistance of counsel claims. See People v. Hamilton, 361
Ill. App. 3d 836, 847 (1st Dist. 2005). Failure to call an expert witness for Defendant
is not per se ineffective assistance of counsel. Id.
The Court believes that Defendant’s counsel cross-examined the medical
experts effectively. The Court does not believe that Defendant’s allegations support
a claim that his counsel’s actions were objectively unreasonable in this case in
consideration of all the evidence presented at trial. The evidence of Defendant’s
guilt was overwhelming. The Court does not believe there is any reasonable belief
that Defendant’s counsel could have obtained a medical expert to testify on his
behalf. As a result, the Court declines to appoint independent counsel concerning
his ineffective assistance of counsel claim and denies Defendant’s motion for
judgment notwithstanding the verdict or a new trial, where this issue was first raised
by Defendant’s counsel.”
¶ 82 On June 28, 2022, the trial court held a hearing advising defendant that the preliminary
Krankel hearing was denied. The same day, defendant filed a notice of appeal. On July 15, 2022,
defendant filed an amended notice of appeal. This appeal followed.
¶ 83 II. ANALYSIS
¶ 84 Defendant raises three issues on appeal. First, he contends that the trial court abused its
discretion by allowing the State to present four-year-old A.W. as a “live-exhibit” in the courtroom
during her grandmother’s testimony, because her presence was irrelevant and the prejudicial effect
of A.W. entering the jury box and interacting with the jurors outweighed any probative value of
her presence at trial. Second, defendant argues that defense counsel provided ineffective assistance
where she failed to retain a medical expert to rebut the State’s medical evidence and to confront
the State’s medical experts with relevant professional literature regarding the unreliability of
shaken baby syndrome and abusive head trauma. Finally, defendant argues that he demonstrated
that defense counsel neglected his case during a preliminary Krankel inquiry. For the reasons that
follow, we affirm. We consider each issue in turn.
23
¶ 85 A. A.W.’s Presence in the Courtroom
¶ 86 First, defendant argues that the trial court erred by allowing A.W.’s father to carry A.W.
into the courtroom during her grandmother’s testimony for identification purposes, where the
court’s ruling resulted in A.W. exploring the courtroom, entering the jury box, and interacting with
the jurors. The State responds, arguing that the trial court did not abuse its discretion by permitting
the identification of A.W. in front of the jury. Alternatively, the State argues that any error was
harmless. We agree with defendant that A.W.’s presence in the courtroom constituted error,
however, we agree with the State that the error was harmless.
¶ 87 “The decision whether to admit or exclude evidence is left to the sound discretion of the
trial court and will not be reversed absent a clear showing of abuse of that discretion resulting in
manifest prejudice to the defendant.” People v. Barnes, 2013 IL App (1st) 112873, ¶ 41. An abuse
of discretion occurs when the trial court’s ruling is arbitrary, fanciful, unreasonable, or where no
reasonable person would take the view adopted by the trial court. Id.
¶ 88 In the case before us, defendant contends that the trial court abused its discretion by
allowing the State to present A.W. to the jury. Defendant argues that the prejudicial effect of this
evidence outweighed its probative value. In the context of determining whether the prejudicial
effect of the evidence substantially outweighs its probative value, our supreme court has
recognized that prejudice means “ ‘an undue tendency to suggest decision on an improper basis,
commonly an emotional one, such as sympathy, hatred, contempt or horror.’ ” People v. Eyler,
133 Ill. 2d 173, 218 (1989) (quoting M. Graham, Cleary & Graham’s Handbook of Illinois
Evidence § 403.1 (4th ed. 1984)).
¶ 89 The State argues that it was required to prove great bodily harm. However, here, the State
established great bodily harm through numerous other avenues. The jurors viewed photographs of
24
A.W. in the hospital. The jury heard testimony describing all of the photographs entered into
evidence. Medical testimony from treating nurses and physicians established great bodily harm.
The jury heard testimony from first responders about A.W.’s condition. Finally, the jury heard
testimony about her condition before and after the incident from Curtis, Parrish, and defendant
himself. Parading A.W. into the courtroom was merely cumulative and not necessary for the State
to establish great bodily harm. Defendant relies on Barnes, 2013 IL App (1st) 112873, ¶ 46, where
our colleagues in the first district determined that “[u]sing a four-year-old child as an exhibit was
extremely prejudicial because the risk that it would unduly influence the outcome by inflaming the
passions of the jury was high, while the probative value of such evidence was marginal where the
State had several other avenues through which to establish the element” of great bodily harm. We
find support in Barnes to conclude that it was an abuse of discretion to allow the State to present
A.W. to the jury.
¶ 90 However, as noted in Barnes, error notwithstanding, this court must consider whether the
error resulted in manifest prejudice to defendant. People v. Lucas, 151 Ill. 2d 461, 489 (1992). The
State argues that the presentation of A.W., even if in error, was harmless in light of the
overwhelming evidence of defendant’s guilt. We agree.
¶ 91 “In order for an error to be held harmless, a reviewing court must be satisfied beyond a
reasonable doubt that the error did not contribute to the defendant’s conviction.” People v. St.
Pierre, 122 Ill. 2d 95, 113-14 (1988); see People v. Fort, 2014 IL App (1st) 120037, ¶ 19; see also
People v. Patterson, 217 Ill. 2d 407, 428 (2005). The State bears the burden of proof on this point.
Patterson, 217 Ill. 2d at 428; see People v. Davis, 393 Ill. App. 3d 114, 132 (2009). To determine
whether an error is harmless, it is necessary to review the facts of the case and the evidence at trial
25
to determine the effect of the unlawfully admitted evidence upon the outcome of the trial. See St.
Pierre, 122 Ill. 2d at 114; see also Davis, 393 Ill. App. 3d at 133.
¶ 92 In the case before us, the evidence supporting defendant’s conviction was overwhelming.
Curtis testified that A.W. was overall a normal healthy child, and after defendant began babysitting
A.W., A.W. often had bruises on her body. First responders, including EMTs and law enforcement,
responded to A.W.’s home in Noble, Illinois, where they observed both A.W. and defendant, and
first responders testified about the extent of A.W.’s injuries. First responders also testified about
the family puppy, and testimony established that the dog was small and did not jump. This
testimony was in direct contrast to defendant’s version of events that the puppy jumped on A.W.,
knocking her backwards in the bathtub, causing her brain injury. A treating nurse and multiple
treating physicians testified about A.W.’s medical condition. All medical experts agreed that
A.W.’s injuries were the result of nonaccidental head trauma. Finally, defendant’s own text and
Facebook messages established that he was frequently frustrated with A.W., “beat” her, and
suggested that he would kill her on multiple occasions. Moreover, Parrish testified that A.W. acted
normally prior to her leaving for work on the date of the incident. Defendant was alone with A.W.
when the injuries occurred. Based on our review of the trial in this matter, we cannot say that
A.W.’s presence in front of the jury constituted a material factor in defendant’s conviction or
otherwise prevented him from receiving a fair trial so as to require reversal. Although we find that
that trial court abused its discretion by allowing the State to present A.W. to the jury, in light of
the overwhelming evidence of defendant’s guilt, we find the error is harmless.
¶ 93 B. Expert Witness Testimony
¶ 94 Next, defendant argues that defense counsel provided ineffective assistance for failing to
retain an expert to rebut the State’s medical evidence and to confront its medical experts with
26
relevant professional literature regarding shaken baby syndrome and abusive head trauma. The
State responds, arguing that defendant failed to demonstrate that counsel was ineffective for
declining to retain a medical expert, where counsel’s decision was not objectively unreasonable
and defendant cannot establish prejudice. We agree with the State.
¶ 95 Ineffective assistance of trial counsel claims are subject to the two-pronged test set forth in
Strickland v. Washington, 466 U.S. 668 (1984). See People v. Albanese, 104 Ill. 2d 504, 526-27
(1984). To succeed on a claim of ineffective assistance of counsel, a defendant must show
(1) counsel’s performance fell below an objective standard of reasonableness, and (2) the deficient
performance resulted in prejudice. Strickland, 466 U.S. at 687; People v. Evans, 186 Ill. 2d 83, 93
(1999).
¶ 96 To satisfy the deficiency prong of Strickland, counsel’s performance must be so deficient
that counsel was “not functioning as the ‘counsel’ guaranteed by the sixth amendment [(U.S.
Const., amend. VI)].” People v. Easley, 192 Ill. 2d 307, 317 (2000). A party raising this claim must
overcome “the strong presumption the challenged action or inaction of counsel was the product of
sound trial strategy.” People v. Coleman, 183 Ill. 2d 366, 397 (1998).
¶ 97 To satisfy the prejudice prong of Strickland, the defendant must demonstrate, but for
counsel’s deficient performance, there is a reasonable probability the result of the proceeding
would have been different. Strickland, 466 U.S. at 687-88, 694; People v. Houston, 226 Ill. 2d 135,
144 (2007). Failure to satisfy either prong defeats the claim. Strickland, 466 U.S. at 697; Coleman,
183 Ill. 2d at 397.
¶ 98 Defendant argues that trial counsel rendered ineffective assistance of counsel by failing to
retain an expert witness contesting the theory of shaken baby syndrome in order to dispute the
State’s expert findings. Initially, we note that defendant misconstrues the record, where no expert
27
witness testified about “shaken baby syndrome” in this case. The State did not retain expert
witnesses in this case. Rather, the State called treating nurses and physicians, who actually
rendered care to A.W. during her time in the hospital. Although Dr. Reifsteck ultimately
determined that A.W. suffered “a case of abusive head trauma[,]” he never testified that A.W. was
a victim of shaken baby syndrome. Moreover, no expert witnesses in this case offered opinions or
testimony suggesting that defendant himself inflicted harm on A.W. The treating medical staff
ultimately determined that A.W. suffered a nonaccidental trauma.
¶ 99 Additionally, in his brief, defendant relies on a variety of medical literature as well as case
law citing such literature. This material was not presented at trial. It is not appropriate for this court
to take judicial notice of a dispute amongst the medical community as to the validity and nuances
of abusive head trauma or shaken baby syndrome, particularly when no expert testified that A.W.
suffered from shaken baby syndrome. People v. Barham, 337 Ill. App. 3d 1121, 1130 (2003)
(stating that “[a] reviewing court will not take judicial notice of critical evidentiary material that
was not presented to and not considered by the fact finder during its deliberations.”).
¶ 100 Turning to the merits of defendant’s claim of ineffective assistance, “[t]he decision whether
to call particular witnesses is a matter of trial strategy and thus will not ordinarily support an
ineffective-assistance-of-counsel claim.” People v. Patterson, 217 Ill. 2d 407, 442 (2005). Failure
to call an expert witness, even where doing so may have made the defendant’s case stronger, is not
per se ineffective assistance because the State could always call its own witness to offer a
contrasting opinion. People v. Hamilton, 361 Ill. App. 3d 836, 847 (2005). As the Supreme Court
observed in Strickland:
“Judicial scrutiny of counsel’s performance must be highly deferential. It is
all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a particular act
28
or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be considered sound trial
strategy.’ [Citation.] There are countless ways to provide effective assistance in any
given case. Even the best criminal defense attorneys would not defend a particular
client in the same way.” Strickland, 466 U.S. at 689.
¶ 101 Defendant claims that a defense expert would have been able to testify at trial to counter
the State’s medical witnesses. Defendant also argues that a defense expert “would have served the
crucial role of advisor to trial counsel in preparing the theory of defense.” He further claims that
counsel’s performance was unreasonable, where counsel failed to confront Dr. Reifsteck with
“relevant professional literature” that would have undermined his opinions.
¶ 102 Here, although defense counsel did not call an expert witness, the record reveals that
counsel extensively cross-examined the State’s medical witnesses. Defense counsel elicited
testimony from medical witnesses that they were unable to determine the age of bruising on A.W.’s
body. On cross-examination, defense counsel adduced from Dr. McCool the bruises on A.W.’s
body were in various stages of healing. Additionally, Dr. McCool noted in his report that the
injuries were due to “non-accidental trauma.” However, Dr. McCool noted that the hematoma to
the back of the head “could happen” if a dog jumped on a child. Moreover, defense counsel elicited
testimony from Jennings that Jennings could not make a “judgment call” on how A.W. received
the injuries.
¶ 103 Dr. Reifsteck was the only witness to testify that A.W. suffered an abusive head trauma.
Defense counsel strenuously cross-examined Dr. Reifsteck. Defense counsel established that Dr.
Reifsteck was not a “treating physician” for A.W. Rather, he was a consulting physician who
29
reviewed the reports of other physicians, and he formed his opinion based on that. We note,
however, that Dr. Reifsteck did, indeed, examine A.W. while she was at Carle Hospital.
Nonetheless, defense counsel established through Dr. Reifsteck that retinal hemorrhaging can
occur outside of abusive head trauma. On cross-examination, Dr. Reifsteck testified that he could
not “say exactly what happened.” Dr. Reifsteck agreed with defense counsel that it was possible
that “a person could have injuries” like A.W. “that would not be intentional.”
¶ 104 Defense counsel used the testimony elicited on cross-examination to argue during closing
arguments that none of the State’s witnesses, including the medical witnesses, offered any
testimony about what happened to A.W. Counsel argued that the jury should focus on the brain
bleed, and not on the bruises on A.W.’s body. Counsel argued: “She fell and she hit her head on
the bathtub. You’ve heard no other evidence or no other explanation at all all week from anyone
explaining how this happened. What they’re doing is they’re looking and they’re saying, well, he
sent those text messages and she had those bruises, so this isn’t an accident. But they didn’t tell
you what it did, what it was then.” Based on the cross-examination of the medical witnesses and
defense counsel’s closing argument, we cannot say that counsel’s performance fell below an
objective standard of reasonableness.
¶ 105 “While the testimony of an expert may have been more effective than counsel’s cross-
examination and closing argument[,]” “we cannot say that failure to produce such an expert fell
below an objective standard of reasonableness, considering all the circumstances, or so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” People v. Mehlberg, 249 Ill. App. 3d 499, 546 (1993). For these
reasons, we find defense counsel’s decisions to challenge the State’s experts’ opinions through
30
cross-examination and closing argument, rather than independent expert testimony, fell within the
wide range of reasonable professional conduct.
¶ 106 Moreover, defendant’s claim fails to meet the second prong of Strickland. See Strickland,
466 U.S. at 687-88, 694. While medical testimony was certainly important to the prosecution of
this case, the evidence against defendant was not limited to medical testimony. The evidence also
included, among other things, A.W.’s physical condition both before and after she started living
with defendant and defendant’s own words admitting to abusing A.W. on occasions prior to
February 6, 2020. Simply stated, as evidenced above, the evidence of defendant’s guilt was
overwhelming. Based on the evidence and record before us, and in light of the overwhelming
evidence the State presented against defendant, we cannot say that defendant was prejudiced by
his counsel’s failure to obtain an expert witness. Accordingly, defendant was not deprived of his
constitutional right to the effective assistance of counsel by trial counsel’s decision to refrain from
calling an expert witness.
¶ 107 C. Krankel Inquiry
¶ 108 Finally, defendant contends that defense counsel “possibly neglected” his case by failing
to obtain a defense medical expert because she mistakenly believed that she would be obligated to
turn over any unfavorable expert opinions to the prosecution. The State responds, arguing that
further hearing on defendant’s claims of ineffectiveness lack merit. For the reasons that follow, we
find that the trial court conducted an adequate preliminary Krankel hearing.
¶ 109 Under Krankel and its progeny, the trial court is obligated to inquire into a defendant’s
pro se posttrial claims that he was denied the effective assistance of counsel. People v. Ayres, 2017
IL 120071, ¶ 11; People v. Moore, 207 Ill. 2d 68, 77-78 (2003). This inquiry, which is sometimes
referred to as a “preliminary Krankel inquiry” (People v. Jolly, 2014 IL 117142, ¶ 28), requires
31
the court to ascertain the nature of defendant’s ineffective assistance of counsel claims and evaluate
their potential merits (People v. Mays, 2012 IL App (4th) 090840, ¶ 58). To understand the factual
bases of defendant’s allegations, it is proper for the court to question both trial counsel and
defendant. Ayres, 2017 IL 120071, ¶ 12. If defendant’s allegations show that trial counsel may
have neglected defendant’s case, the court should appoint new counsel and set the matter for a
hearing. Id. ¶ 11; Moore, 207 Ill. 2d at 78. If the court determines that the claims lack merit or
pertain only to matters of trial strategy, however, then no further action is required. Id. A
preliminary Krankel inquiry “serves the narrow purpose of allowing the trial court to decide
whether to appoint independent counsel to argue a defendant’s pro se posttrial ineffective
assistance claims.” People v. Patrick, 2011 IL 111666, ¶ 39.
¶ 110 A defendant’s pro se claim lacks merit if it is misleading, conclusory, or legally immaterial
or fails to “ ‘bring to the trial court’s attention a colorable claim of ineffective assistance of
counsel.’ ” People v. Cook, 2018 IL App (1st) 142134, ¶ 104 (quoting People v. Johnson, 159 Ill.
2d 97, 126 (1994)). “The court may, of course, rely on its own legal knowledge of what does and
does not constitute ineffective assistance.” Mays, 2012 IL App (4th) 090840, ¶ 57. The court may
also base its evaluation of defendant’s claims on its knowledge of counsel’s performance at trial
and “the insufficiency of the defendant’s allegations on their face.” Moore, 207 Ill. 2d at 79.
¶ 111 “The operative concern for the reviewing court is whether the trial court conducted an
adequate inquiry into the defendant’s pro se allegations of ineffective assistance of counsel.” Id.
at 78. Whether the court properly conducted a preliminary Krankel inquiry is a legal question
reviewed de novo. Jolly, 2014 IL 117142, ¶ 28. If, however, the court conducted the Krankel
inquiry properly and reached a determination on the merits, we will reverse only if its action was
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manifestly erroneous. People v. Tolefree, 2011 IL App (1st) 100689, ¶ 25. “ ‘Manifest error’ is
error that is clearly plain, evident, and indisputable.” Id.
¶ 112 The State acknowledges that “the defense is not obligated to disclose unfavorable reports
or opinions by non-testifying witnesses.” However, the State contends that any mistake of law
does not merit remand and the appointment of new counsel where, after conducting a preliminary
inquiry into defendant’s ineffective assistance claim, the court correctly concluded that
defendant’s claim had no merit. We agree with the State.
¶ 113 Although we recognize that defense counsel operated, in part, under a misunderstanding
that she may have to disclose an unfavorable report to the State, counsel also offered strategic
reasons for failing to obtain a medical expert on defendant’s behalf. Counsel stated, “I felt like
with cross-examination of the medical doctors and some of the other people that the State put on,
we were able to bring out that they couldn’t determine what caused the injury either, which would
essentially be the same thing if we put on an expert as well, and that—sometimes I think it’s better
when you have a jury if you don’t—if it’s not the same thing over and over and over again.”
¶ 114 In its docket entry ruling on defendant’s claim of ineffective assistance of counsel, the court
acknowledged counsel’s confusion and noted that counsel “asserted that this was a matter of trial
strategy and that she was concerned that having another medical expert review the medical
information could result in another medical expert testifying against her client rather than in her
client’s favor.” However, the court correctly noted that it could consider the merits of defendant’s
claim in its entirety. The court ultimately concluded that defense counsel cross-examined the
medical experts effectively. The court also determined that the evidence of defendant’s guilt was
overwhelming, and counsel likely could not have obtained a medical expert to testify on his behalf.
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¶ 115 We find our supreme court’s reasoning in Roddis, 2020 IL 124352, instructive. There, the
supreme court reiterated that, at a Krankel hearing, a trial court may base its determination of the
merits of a defendant’s ineffective assistance claims on its own knowledge of counsel’s trial
performance and emphasized, “[t]he trial court, most familiar with the proceedings at issue,
remains best situated to serve the interests of judicial economy by extinguishing conclusory claims.
We decline to unduly limit the most effective arbiter between patently frivolous claims and those
showing possible neglect.” Id. ¶ 56.
¶ 116 Viewing the defendant’s ineffective assistance of counsel allegations in the context of the
entire record on appeal, we conclude that the trial court’s preliminary Krankel inquiry was proper
and supported the court’s denial of the defendant’s posttrial motions. The court rightfully rejected
defendant’s claims based on its firsthand knowledge of counsel’s performance during the trial and
the fact that the claims related to trial strategy. We find that the court’s determination that trial
counsel provided effective assistance to defendant was not manifestly erroneous, and the record
does not reveal that the appointment of counsel was necessary for investigation into defendant’s
claims.
¶ 117 III. CONCLUSION
¶ 118 For the foregoing reasons, we affirm defendant’s Richland County conviction for
aggravated battery of a child.
¶ 119 Affirmed.
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