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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