# People v. JACOBAZZI

> Appellate Court of Illinois · February 17, 2010 · 398 Ill. App. 3d 890

URL: https://www.frixlaw.com/law-library/cases/9863109

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAMELA JACOBAZZI, Defendant-Appellant
- **Court:** Appellate Court of Illinois
- **Decided:** February 17, 2010
- **Citations:** 398 Ill. App. 3d 890; 358 Ill. Dec. 816; 966 N.E.2d 1
- **Precedential status:** Published
- **Opinion:** On rehearing by Malley
- **Judges:** O'Malley, Schostok
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9863109

## Opinion text

SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
JUSTICE O’MALLEY delivered the opinion of the court:
The State has filed a petition for rehearing. In it, the State argues that (1) we are procedurally barred from revisiting our decision in Jacobazzi IP, and (2) our decision to broaden the scope of the Strickland hearing we ordered in Jacobazzi II is substantively erroneous.
The State’s procedural argument has itself stumbled on a point of procedure; the State could have made its points in its responsive brief but did not. Defendant’s opening brief assailed the trial court’s refusal to consider material evidence (the opinions of Drs. Speth and Subramanian) on whether it was acceptable trial strategy for counsel not to utilize the Nadelman records. The State’s responsive brief defended our decision in Jacobazzi II on its substance. Echoing our rationale in Jacobazzi II, slip op. at 9-10, the State said:
“Since both [Montemurro and Butera] were aware of the sickle cell trait diagnosis, and since Dr. Leestma had discussed this issue with Mr. Montemurro, the attorneys cannot be deemed to have rendered ineffective assistance of counsel because after defendant’s conviction had been upheld, they decide that a new trial strategy incorporating the diagnosis may have been better trial strategy. The reports and opinions of Dr. Subramanian and Dr. Speth are not newly discovered evidence. Rather, they are experts, newly consulted after the completion of the trial. Defendant never demonstrated that she could not have consulted with them prior to trial. Therefore, their opinions and reports are of no consequence.”
There was another line of defense that the State could have employed. As defendant noted (and as we affirmed (398 Ill. App. 3d at 915-16, 920)) the trial court’s decision to bifurcate was a straightforward application of our directions on remand in Jacobazzi II. Thus, the State could have tried to strike defendant’s argument at its root by arguing that the ruling in Jacobazzi II and, by extension, the bifurcation decision, were insulated from reconsideration. The State, however, posited no procedural obstacle aside from arguing that the record on appeal was incomplete. 11 The State now seeks to augment its procedural line of attack by arguing res judicata and law of the case. The time for that has passed. See 210 Ill. 2d R. 341(h)(7) (“Points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing”).
We discuss the State’s procedural argument only to dispel the State’s notion that we misstated the law-of-the-case doctrine. The State asserts that the case we cited for the doctrine, People v. Sutton, 375 Ill. App. 3d 889, 894 (2007), did not give a complete statement of the second, or the “palpably erroneous,” exception to the doctrine. The State contends that a proper statement of the second exception appears in Martin v. Federal Life Insurance Co., 268 Ill. App. 3d 698 (1994). Martin stated that a reviewing court may depart from a decision in a prior appeal “if the court finds that its prior decision was palpably erroneous, but only when the court remanded the case for a new trial on all issues.” (Emphasis added.) Martin, 268 Ill. App. 3d at 701 . Sutton, the State suggests, misrepresented the law-of-the-case doctrine by omitting the emphasized language.
Sutton, however, is not the only appellate opinion to have stated the “palpably erroneous” exception without including the “remand for new trial” qualifier. See People v. Izquierdo-Flores, 367 Ill. App. 3d 377, 381 (2006) (“the law of the case doctrine does not limit this court’s power to revisit an issue if our initial decision was clearly erroneous and would work a manifest injustice”); Bond Drug Co. of Illinois v. Amoco Oil Co., 323 Ill. App. 3d 190, 198 (2001) (same). Our supreme court has done so as well. See People v. Sutton, 233 Ill. 2d 89, 98 (2009) (“The State also argued that the Sutton II court should apply the palpably erroneous exception to the law of the case doctrine, which allows a reviewing court to depart from the doctrine if the court determines that its prior decision was palpably erroneous”). The supreme court has also said that the law-of-the-case doctrine “merely expresses the practice of courts generally to refuse to reopen what has been decided” and is “not a limit on their power.” People v. Patterson, 154 Ill. 2d 414, 468 (1992). We are not convinced that the qualifier stated in Wilson is a definitive part of the law-of-the-case doctrine. If, as the supreme court says, the doctrine only expresses the practice of courts, then it would be little surprise if the doctrine varied as much as the practice it expresses.
The qualifier is not enforced to the letter even among the courts that subscribe to it. The stated rationale for relaxing the doctrine on appeal following a remand for a new trial is that “the appellate court, on the second appeal, actually would be reaching a different decision based on a new and different trial.” Stallman v. Youngquist, 152 Ill. App. 3d 683, 689 (1987) (Stallman II), rev’d on other grounds, 125 Ill. 2d 267 (1988). In Stallman v. Youngquist, 129 Ill. App. 3d 859, 860 (1984) (Stallman J), the trial court dismissed count II of the plaintiffs complaint as barred by the parent-child immunity doctrine. The appellate court agreed with the trial court that parent-child immunity exists in Illinois but noted that the doctrine did not bar recovery “for conduct wholly unrelated to the objectives or purposes of the family itself.” Stallman I, 129 Ill. App. 3d at 863 . The appellate court remanded to afford the plaintiff the “opportunity to prove whether [the defendant’s] act of driving to a restaurant was not an act arising out of the family relationship and directly connected with family purposes and objectives.” Stallman I, 129 Ill. App. 3d at 864 . On remand, the trial court granted summary judgment for the defendant on the ground that parent-child immunity applied. Stallman II, 152 Ill. App. 3d at 686 . The plaintiff again appealed, and the appellate court determined that the law-of-the-case doctrine did not bar its reevaluating its prior holding that parent-child immunity exists in Illinois:
“We believe that the second exception to the doctrine of law of the case applies here. The trial court made no factual determination in Stallman I; we reviewed only the sufficiency of the pleadings and remanded the cause to the trial court for a factual determination. We expressly gave the parties an opportunity to have a trial and to develop a new, record. We conclude, therefore, that we may abandon our holding in Stallman I insofar as it recognized the parent-child tort immunity doctrine in Illinois.” Stallman II, 152 Ill. App. 3d at 689 .
As we read this passage, Stallman II’s rationale was that, where the first appeal resulted in a remand for a trial in the first instance, 12 there is just as much a “new record” on the second appeal as there would be if the first appeal resulted in a second, or new, trial. That seems a sensible extension of the second exception. If nothing else, Stallman II shows further variation in the practice of courts dealing with law-of-the-case issues and reinforces Patterson’s point that the doctrine is a custom of abstention, not an absolute preclusion. Convinced as we are that the decision in Jacobazzi II was palpably erroneous and worked a manifest injustice, we have chosen to revisit it.
We proceed to the State’s substantive attack on our decision to expand the scope of the third-stage evidentiary hearing we ordered in Jacobazzi II. The State’s material on this point is long on invective but short on analysis.
By “invective,” we mean the accusation that we have “twisted” and “eviscerated” Strickland to form an “unrecognizable and insupportable” holding and a “confusing amalgamation.” The State claims that our decision “flies in the face of all prior precedent” and that we “abrogated all Strickland precedent.” The State agrees with Justice Schostok’s dissenting opinion, but we note that she was able to make her points in a respectful manner.
By “short on analysis,” we mean that, for its argument that our holding generally alters Strickland’s framework, the State supplies a simple string citation to pages on which appear only generic material about Strickland’s two prongs. The State adds no parenthetical, elaboration, or analysis to its string citation but relies on stridence alone. The State accuses us of colossal upheaval in the law but makes no appreciable effort to identify in what way our general holding departs in even the slightest from the Strickland framework.
The State’s specific complaint is that our ruling “conflates the Strickland analysis from the requisite two prongs into one in which all evidence is presented, regardless of whether it is relevant to the deficiency prong or the prejudice prong.” The State asserts that we set aside “the long-standing, two-prong analysis of Strickland in favor of a singular hearing in which all evidence is presented, regardless of whether it attacks counsel’s alleged deficiency, or whether defendant suffered prejudice.” This is simply not correct. Our general holding is that evidence of an alleged error by defense counsel may be relevant to both Strickland prongs, that is, relevant both in determining whether counsel’s performance fell below professional norms and in deciding whether any such lapse prejudiced the defendant. Our general holding says nothing more. We continue to believe it follows uncontroversially from Strickland’s remarks on the scope of the respective prongs:
“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” (Emphases added.) Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064.
Counsel’s alleged “errors” are material to both prongs of Strickland. If that is too much overlap for the State’s tastes, then its complaint is ultimately with the highest court in the land, not with us.
As for our specific holding here that defendant is entitled to present evidence of how the Nadelman records might have benefitted her at trial, the State distinguishes Richey. In Richey, the State notes, the defense expert told counsel that he agreed with the prosecution’s conclusions, and counsel did not inquire into the reasons for that opinion. Nothing so egregious was shown here, the State suggests. The State fails to recognize that our purpose is not to compare the evidence at the evidentiary hearing in Richey with the evidence developed here. We cited Richey to show only that defendant deserved an evidentiary hearing of the scope seen in Richey, where all material evidence on defense counsel’s competence was admitted. Richey demonstrates that there is a limit to defense counsel’s proper deference to the opinions of a defense expert. Thus, the fact that defense counsel may have conferred with Dr. Leestma about the Nadelman records does not necessarily insulate counsel from scrutiny. Counsel’s decision not to use the Nadelman records is to be judged in an appropriate context — one that takes account of how the Nadelman records might have helped the defense. We relied on Richey to show only that we were wrong in Jacobazzi II to categorically dismiss the relevance of the potential strength of the Nadelman records. Richey will be procedurally comparable to this case only when the trial court has concluded the evidentiary hearing on remand. Hence we see the prematurity of the dissent’s sweeping remark, quoted by the State, that “ ‘any inadequacies in [Dr. Leestma’s] expert assistance *** cannot be the basis for a meritorious ineffective-assistance claim.’ ” (Emphasis added.) See 398 Ill. App. 3d at 938. Whether defendant has established “a meritorious ineffective assistance claim” remains to be seen.
It is essential, we feel, to retain a larger view of what is at issue here. Defendant was charged with murdering the victim. The State’s case was entirely circumstantial. Defendant’s guilt, the State argued, was inferable from the following: (1) the victim was healthy and appeared normal when he was placed in defendant’s care on August 11, 1995; and (2) when he was picked up later that day, the victim manifested symptoms of shaken baby syndrome. At trial, the defense suggested that the victim may have sustained an injury prior to August 11, 1994, that could account for his symptoms. The State countered with evidence that any prior injury of that severity would have been immediately symptomatic and been noticed prior to August 11, 1994. The defense offered no evidence of any preexisting condition in the victim that might have manifested itself in a way that could be confused for shaken baby syndrome but might not have become symptomatic until August 11, 1994. Defendant was convicted and sentenced to 32 years in prison. She filed a direct appeal and, later, a postconviction petition. While our trial and appellate courts have seen many postconviction petitions fail for want of adequate affidavits, if they attach affidavits at all, defendant’s petition was substantiated with the well-developed opinions of two physicians, one of them a medical professor from the University of Chicago. These affidavits filled the gaps in the defense’s theory by positing preexisting conditions that might not have become fully symptomatic until August 11, 1994. These conditions, the experts averred, were indicated in the Nadelman records. The State filed a motion to dismiss the petition but, until now, has never been called to answer the affidavits on their substance. Our holding is nothing more than that defendant is entitled to a hearing at which she may develop what significance the Nadelman records might have had for the defense’s theory at trial. We are not granting defendant a new trial but just a further evidentiary hearing, which we hold is called for given the thoroughness of the affidavits, describing as they do preexisting conditions that might well explain the victim’s symptoms on August 11, 1994.
BOWMAN, J., concurs.
The State argued that defendant forfeited her challenge to the bifurcation of the Strickland hearing because the record is missing the transcript of the hearing at which the trial court initially made the decision to bifurcate. As we noted in footnote 5 to our original opinion (398 Ill. App. 3d at 904 n.5), the scope of that decision is manifest in the record. The State’s ability to defend the bifurcation does not appear to have been impaired by the record omissions of which it complains.
Contrary to Stallman II’s assertion, the remand in Stallman I was not expressly for a trial. In Jacobazzi II, however, we did direct the trial court to hold an evidentiary hearing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9863109. Public record. Not legal advice.