## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Weeks , 2011 IL App (1st) 100395

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. ROBERT WEEKS, Defe ndant-Appe llant.

District & N o. First District, Second D ivision Docke t No. 1-10-0395

Filed Rehea ringdenied September 27, 2011

J anuar y 25, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In a prosec ution for ag gravated criminal sexual assault and attempted murder, the jury ’s finding that defe ndant was guilty but mentally ill wa s aff irmed over defe ndant’s contentions that he should have been found not gui l t y b y re ason of insanity or that he should have been g rante d a new trial beca

use o f the denial of his motion for a continuance
, the ineffe ctiven es s of defe nse counsel, and the denial of his motion for the appointment of a spe cial prose cutor.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 06-CR-22 9 6 6 ; the Hon. Michae l Brown, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletie r, Alan D. Goldberg
, and Kristine A. Nea l, all of the State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s At torney , of Chicag o (Alan J

. Spellberg
, Michelle Katz, and Tasha-Mar ie Kelley , Assistant St ate’ s Attorney s, of counsel), f

or the People.

Panel J USTI CE CONNORS delivere d the judgme nt of the court, with opinion. Presiding J ustice Quinn and J ustice Cunnin gh am concur red in the judgme nt and opinion.

OP INION

¶ 1 A jury found defe ndant Robert Weeks guilty but ment al l y i l l o n t h re e co u n t s o f
ag g ravated criminal sexual assault and one count of attempted murder. On appea l, defe ndant contends that the jury ’s verdic t was ag ainst the manifest weight of the evidenc e and that he should i n stead have been found not guilty by rea son of insanity

. Alternatively
, defe ndant
argues that a new trial is war rante d beca

use (1) the trial court abused its discretion in failing
to g rant a continuance
, (2) h i s d ef ense counsel was ineffe ctive, and (3) the trial court

err oneously

denied a motion to appoint a specia l State’ s Attorney for this ca se. We aff

irm.

¶ 2 I . BA CKGROUND ¶ 3 The fac ts surrounding the offe nse wer e essentially undisputed, and the trial cente red on the question of defe ndant’s sanity

. We beg in by briefly summarizing the evidenc e prese nted
at trial and this case ’s proc edura l history , and we will refe r to additional fac ts as nece ssary in our ana ly sis. ¶ 4 De fenda

nt attacke d and sexually assaulted the victim, E.L
., in Fe bruar y 2001. As E.L

. was walking home around 1:30 a.m., defe ndant knocked her down from behind and drag g ed her into an empty lot. E.L

. attem p t ed to scre am for help, but defe ndant repeate dly order ed E.L

. to be quiet and beg an strikin g her in the head and fac e with a larg e rock. Def endant struck E.L

. with the rock on her head and back until she was subdued, then drag g ed E.L

. to

a g angway in the back of the lot. Def endant climbed on top of E.L
., but was interrupted when

a car drove throug h the alley

. Def endant stopped what he was doing and order ed E.L

. to be quiet. After the car passed, defe ndant drag g ed E.L

. far ther into the alley
, sexually assaulted her, and fled. E.L

. was eventua lly found by police office rs who had been aler ted to the assault by passer sby

. ¶ 5 E.L . was take n to a hospital and t reated for her injuries. The injuries to E.L .’s fa ce a nd

-2-skull wer e s ev ere and require d the implantation of a metal plate under her eye. A sexual

as sault kit was also collecte d at the hospital, which rec overe d a male DNA samp l e fr o m underne ath E.L .’s fing erna ils. Def endant was eventua lly indicted s e v e r a l ye ars later when the DNA sample was matc hed to him. ¶ 6 After defe ndant’s indictment, t h e Of fi ce o f the Cook County Public Def ender was appointed as counsel, but the office was require d to withdraw shortly th er ea ft er du e to a conflict of interest. After the public defe nder withdrew, defe ndant’s new p ri v at e co unsel 1
g ave notice that she intended to pursue an aff irmative defe nse of insanity and moved to have defe ndant eva luated for

fitness to stand trial. ¶ 7 The trial court conducte d two fitness hear ings. At the first hearing, the parties stipulated
to the t estimony of Dr. Peter L ourg os, a psy chiatrist who was also the assis tant direc tor of For ensic Clini cal Service s for the Cook County court. Acc ording to Dr. L ourg os, defe ndant

was fit to stand trial with medication. The trial court agree d and found defe ndant fit for trial. At t he second hear ing, Dr. L ourg os testified for the State and defe ndant prese nt ed t h e testimony of Dr. Michae l Stone. Wherea s Dr. L ourg os opined that defe ndant was fit for trial,

as he had at the time of the first hear ing, Dr. Stone opined that defe ndant was unfit for trial. Both experts substantially agree d that defe ndant suffe red from one or more mental illnesses, but they d i ff

er ed as to whether he was able to stand trial with medication. The trial court ultimately

found def

endant f it for trial with medication. ¶ 8 About six months befor e the scheduled t ri al date, defe nse counsel filed an eme rg ency motion t o wi t hdraw based on defe ndant’s inappropriate behavior toward her during a meeting

. The cou rt gra n t ed the motion and rea ppointed the public defe nder, the ear lier conflict of inter est havingappar ently been r esolved. ¶ 9 Only four day s befor e the trial was set to beg in, sever al developments occur red that are rele vant to this appea l. On that date, which was a previously schedule d hear ing on motions in limine for this case , defe ndant was arr aig ned o n fi v e n ew case s. These new char g es stemmed from a

n incident seve ral weeks before in which defenda nt alleg edly threatened a number of individuals in the courtroom, one of whom was the le ad prose cutor in this c ase. Also on that date, defe nse counsel reque sted that the trial date be resc heduled. Acc ording to defe nse counsel, she had rea liz ed only day s befor e that Dr. Stone
, wh o was schedule d to testify as the defe nse expert on the issue o f i n s an i t y , had never rende red an opinion as to whether defe ndant was leg ally insane when he attacke d E.L

. Def ense counsel stated that Dr. Stone was sche duled to complete his e valuation of defe ndant that afte rnoon, but the re port woul d not be available unti l the day befor e trial. After argument, the t rial court denied the motio n , fi n d i n g among other things that defe nse counsel had not made a diligent eff ort to obtain Dr. Stone’s opinion and that defe ndant would not be prejudiced b ec au s e the

ev aluation would be complete and the repor t available befor e the curr ently schedule d tr i al date.

T he off

ic e re pre sen te d a n o t h e r i n dividual on an unr el at ed cas e who had re que st ed DNA 1
te st ing, but the re sul ts of tha t te st app ear ed to exo ner at e the oth er ind ividu al and implic at e def end ant in the cr ime.

-3-¶ 10 Dr. Stone met with defe ndant afte r t h e h ea ri n g i n o rder to specific ally discuss the

circ umstances surrounding the attack on E.L

. Although this m eeting only lasted about 20 minutes, Dr. Stone had previously evaluated defe ndant’s medical rec ords and had met with defe ndant when he evaluated his fitness fo r t ri al

. After the m eeting
, Dr. S tone opi ned that defe ndant was insane at the time of the of fense

. ¶ 11 The morning of t h e t ri al
, d ef en s e counsel filed a motion to appoint a specia l State’s Attorney to prosec ute the case

. The motion was based on the fac t that the lead prosec utor was

a complaining witness in the new case s that had been filed ag ainst defe ndant. The prosec utor

aver red to the trial court that she had no specia l i n t er es t i n t his case and that the pending char g es in the new case s would not ha ve any bear ing on how she prosec uted this c ase. The trial court denied the motion, finding that the prosec utor’s continued i n v o l v em ent would neither a ffe ct the jury

nor pre judice def

endant. ¶ 12 At trial, the evidenc e that defe ndant had committed the c rim e w a s essentially uncontested and the c ase c enter ed on defe ndant’s affirmative defense of i nsanity

. Dr. S tone t estified in defe ndant’s favor
, opining that defe ndant suffe red from a host of mental disorders, including bipolar-ty pe schizoaffe ctive disorder, poly substance depende nce, antisocial and border line
perso nality disorders, viral hepatitis and lead poisoning, and sever e psy chosocia l and environmenta l problems. B ased on D r. Stone’s re view of defe ndant’s medical rec ords and his interviews with defe n d an t , Dr

. Stone opined that defe ndant had suffe red from either schizophreni a o r s ch izoaffec tive disorder when he attacke d E.L

. and was there fore unable to appre ciate the criminality of that ac tion at the time. ¶ 13 In rebuttal, the State called Dr. L ourg os. Although Dr. L o u rgo s agree d that defe ndant suffe red fro m p ersona lity disorders and poly substance depende nce, Dr. L ourg os did not believe defe ndant suffe red from schizophrenia or schizoaffe ctive disorder. Dr. L o urg os

conce ded that defe ndant h ad s el f- repor ted some sy

mptoms of these disorders, but in Dr. L ourg os’ opinion defe ndant was most likely malinge ring

. Dr. L ourg os based his opinion on the fac t that although de fenda nt claimed that he was hear ing voices, he did not prese nt a ny other sy mptoms that g ener ally acc ompany these disorders. In Dr. L ourg os’ o p i n i on, defe ndant was a

ble to appre ciate the criminality of his actions whe n he attac ked E.L

. ¶ 14 The jury ultimately found defe ndant guilty but mentally ill, and the trial court sente nced defe ndant to life in prison. This appea l followed.

¶ 15 I I . ANALYSI S ¶ 16 Def

endant raises four issues on appea l, namely (1) whether the jury ’s findi ng of guilty but me ntally ill wa s ag ainst the manifest weight of the evidenc e, (2) whether the trial court

err ed by denying defe ndant’s motion for a co ntinuance, (3) whether defe nse counsel was ineffe ctive for failing to obtain an expert opinion on the issue of defe ndant’s sanity until the eve of trial, and (4) whether the trial cour t erre d by deny ing de fenda

nt’s motion to appoint
a spec ial State’s Attorney

.

-4-¶ 17 A. J ury Ver dict ¶ 18 The main issue at trial was whether defe ndant was insane when he assaulted E.L . Under section 6-2( a) of

the Criminal Code of 1961 (720 I L CS 5/ 6-2(a ) (West 2010)), “ [a] person is not criminally responsible for conduct if at the time of such conduct, as a result of mental disease or mental defe ct, he lacks substantial capa city to appre cia t e t h e cr iminality of his conduct.” Insanity is an aff irmative defe nse (720 I L CS 5/6-4 (West 2010)), and the defe ndant bear s the burden of proving the defe nse by clea r and convincing evidenc e (720 I L CS 5/6-2(e) (West 2010)). I f a defe ndant proves that he was mentally ill but fails to prove that he could

2
not appre ciate the criminality of his actions, then the jury may return a verdic t of guilty but 3 mentally ill. S ee 725 I L CS 5/ 115-4(j) ( West 2010). ¶ 19 In this case , the jury found defe ndant guilty but mentally ill. On appea l, defe ndant attac ks the jury ’s finding on the second element of the defe nse, arguing that he proved by clea r and

co n v i ncing evidenc e that he could not appre ciate the criminality of hi s actions. Defendan t urg es us to vacate the jury ’s ver dict and ente r a f inding of not guilty

by rea son of insanity

. ¶ 20 A defe ndant’s sanity is a q u es t i o n o f fa ct, and we will not overturn the jury ’s finding unless it is aga inst the manifest weight of the evide nce. See People v. Urdiales , 225 I ll. 2d 354, 428 (2007); People v. Johnson
, 146 I ll. 2d 109, 128-29 (1991). “A finding is ag ainst the

m anifest weight of the evidence only if the oppos ite conclusion i s clea rly evident o r i f t h e findingitself is unreasona ble, ar bitrary , or not ba sed on the evidenc e prese nted.” People v

. Deleon
, 227 I ll. 2d 322, 332 (2008). Under this rela tively defe rential standard of revie w, “ ‘a revie wing court may not simply rew eig h the evidenc e and substitut e its judgme nt for that of the jury .’ ” St u dt v. Sherman Health Systems
, 2011 I L 108182, ¶ 50 (quoting Snelson v. Kamm , 204 I ll. 2d 1, 35 (2003)). ¶ 21 Reweighing the evidenc e is prec isely what defe ndant asks us to do on appea l. This case essentially boiled down to the differ ence in opinion betwee n Drs. Stone and L ourg os about whether defe ndant could appre ciate the criminality of his actions when he attacke d E.L

. The jury hear d conflictingopinions from the two expert witnesses, and ba sed on its verdic t the jury chose to acc ept Dr. L ourg os’ opinion over that of Dr. Stone. Def endant argues on appea l that Dr. Stone’s opinion should have been g iven more weight tha n Dr. L ourg os’ beca

use it

was better supported. Def end an t relies on four specific fac tors: (1) the interview environment, (2) the use of psy cholog ical tests, (3) contempora neous diagnoses, and (4) defe ndant’s socia l, phy sical, and me ntal history

. ¶ 22 Re g a

r d in g th e in

te r v ie w e nv iro nment, the evidenc e indicated that defe ndant was shac k le d when Dr . L ourg os interviewe d him the first time, althoug h it is unclear whe ther de fenda nt

T h e S t at e re ta ins the bur den of pro ving the el ements of the off ens e beyond a re aso nab le 2 doub t ( 720 I LCS 5/ 6- 2(e ) ( We st201 0)) , butth atis not at is sue in th is app eal

.

I t sho uld be not ed tha t al tho ugh a def end ant m ust pro ve the el ements of the ins ani ty def ens e 3 by cl ear and con vinci ng eviden ce (72 0 I LCS 5/6

- 2(e ) (W est 2010 ))
, the def end ant nee d onl y pro ve by a pre pond er anc e of the eviden ce tha t he suf fe re d fr om a m ent al il lne ss in ord er to be fou nd guilt y but m ent al ly il l ( 720 I LCS 5/ 115-4(j ) ( We st201 0))

.

-5-was shackle d during the second interview. Def end an t argue s that this fac t rende red Dr. L ourg os’ evaluation of defe ndant suspect, pointing to testimony by Dr. Stone that it was his experience that meeting with patients unshackle d and alone was the best way to ensure an eff ective inter

view. ¶ 23 Def

endant also points to Dr. Stone’s use of psy cholog ical tests during his interviews with defe ndant. Dr. Stone perf

ormed two tests, the Test of Memory Maling ering (TOMM) and the Minnesota Multiphasic Personality Inventory

(MMPI ). B ased on defe ndant’s performa nce

on the TOMM, Dr. Stone opined that defe ndant was not malinge ring, t h at i s , he was not making up hi s psy chotic sy mptoms. Dr. L ourg os did not perf orm any psy cholog ical tests during his interviews, and in his opinion defe ndant was falsely repor ting that he was hear ing voices. When aske d about t his point during cross-e x amination, he st ated that ther e wa s no need to perf

orm either tes t

. Dr. L ourg os explained that the TOMM was desig ned to test whether a person who claimed not to reme mber something was in fac t having m em ory problems, and he explained that the MMPI was desig ned to cre ate a persona lity profile, not to diag nose mental illnesses. Dr

. L o u rgo s stated that the tests wer e neither nece ssary nor helpful in order

to determine whether

defe ndant was he aringvoices or not. ¶ 24 Def

endant also notes that neither Dr. Stone nor Dr. L ourg os evaluated him for sanity until betwee n six and eig ht y ear s afte r the attack on E.L

. Be cause of the lapse in time, defe ndant
argues that diag noses of defe ndant b y other psy chiatrists around the time of the attack are

cruc ial evidenc e reg arding his sanity at that time. Only three day s afte r the attack, defe ndant chec ked himself into Saint Eliz abeth’ s Hospital for psy chiatric trea tment. Dr. Stone testified that he revie wed and relied o n fo ur particula r psy chiatric repor

ts on defe ndant that wer e written within a month or so of the attack. During this time, defe ndant was diag nosed with schizo p h re n i a twice, schizoaffe ctive disorder twice, and depre ssion once. Def endant was presc ribed various antidepre ssant and antipsy chotic medications, including Haldol, Prozac, Depa kote, and Coge ntin. Dr. Stone testified that these contempora neous finding s bolstered his opinion t hat def

endant wa s not sane at the time of the attac k. ¶ 25 Dr. L ourg os, howeve r, also re v i ew ed t h es e re co rd s an d did not find them to be particula rly sug g estive t hat defendant was insane at th e t ime. Dr. L ourg os noted t hat t here

wer e numerous n o tations in defe ndant’s rec ord from other psy chiatrists indicating that defe ndant may

have be en maling ering . Dr. L ourg os also noted t hat t he previous diag noses of schiz ophrenia and schiz oaff ective disorder were for the most part pro v i s i o n al and wer e based solely on defe ndant’s self repor t that he hear d voices. Dr. L ourg os found it notable that althoug h defe ndant repor

ted hearing voices, there was no evidenc e in his me d ic a l r ecor ds that he suffe red from any other objective sy mptoms that normally acc ompany these disorders. Dr. L ourg os also observe d that defe ndant had been taken off of his medications during 2001-03 in order to deter

mine whether defe ndant was malinge ring and defe ndant appea red to suffe r no adver se ef

fec ts, a fac t that Dr. L ourg os found ver y telling. ¶ 26 Def

endant finally points to the two doctors’ disparate consideration of defe n d a nt’ s s o c ial, phy sical, and mental history

. Both doctors testified that they revie wed ample rec ords that indicated defe ndant suffe red sever e phy sical and emotional abuse as a child, and that he had signific ant ment al health and drug abuse problems beg inning at an ear ly ag e. Dr. L ourg os tes t i fied that he did not find this history particula rly useful in coming to his diag nosis,

-6-primarily b ec au s e m o st of the rec ords descr ibing these issues wer e not cre ated by mental

health profe ssionals and wer e there fore missing important diag nostic information. Dr. L ourg os conce ded that all data is helpful in rea ching a diag nosis, but he testified that his own observations and other re cords we re more useful in this case. ¶ 27 The jury hear d all of this e vidence

. The two experts disa g ree d about which rec ords and fac ts were helpful and which wer e not, and they disag ree d in the ir ultimate conclusions on the impact of these rec ords and fac ts on the question of defe ndant’s sanity

. There is nothing in the rec ord, howeve r, that indicates Dr. L ourg os came to his conclusion arbitra rily

. Although defe ndant would have us rew eig h the evidenc e and c ome to our own c onclusion about what weight eac h ex pert’s opinion should be g iven, the supreme court has long cautioned that “the appellate court sh o u l d not usurp t he function of t he jury and subst itute its judg ment on questions of fac t f airly submitt ed, tried, and deter mined from the evidenc e which did not g reatly preponde rate either way .” Maple v. Gustafson
, 151 I ll. 2d 445, 452-53 (1992). I t is the jury ’s place
, not ours, “to resolve conflicts in the evidenc e, to pass upon the

cre dibilit y of the witnesses, and to decide what weight should be g iven to the witnesses’ testimony .” Id. at 452 (citing People v. Holmes
, 141 I ll. 2d 204, 243 (1990))

. Def endant has not br oug ht to our attention any evidenc e from the r ecor d showing that it is clea rly evident that defe ndant could not appre ciate the criminality of his actions when he attacke d E.L

. The jury ’s verdict of guilty but mentally ill was accor dingly not aga i nst the m anife st weight of the evidenc e.

¶ 28 B. Continuance ¶ 29 Def

endant next argues that i t wa s er ro r fo r the trial court to deny defe nse counse l’s
mot i o n for a continuance

. At the motion in limine hear ing that was held four day s befor e defe ndant’s trial was schedule d to be g in, de fense counsel filed a motion for a continuance

. Def ense counsel had been rea ppointed to repr esent defe ndant six months befor e, bu t s h e

aver red that she had just discovere d that Dr. Stone h ad never rende red an opinion on defe n dant’s sanity

. Given that defe ndant intended to prese nt insanity as an aff irmative defe nse, d ef

en se counsel stated that she could not adequately repr esent defe ndant without additional time to prepa

re for trial afte r revie wing Dr. Stone’s repor t. The trial court denied the motio n , n oting that defe nse counsel had alre ady had six months in which to obtain a repor t from Dr. Stone. The trial court also noted that defe ndant would not be prejudice d since defe nse counse l would rec eive the repor t be fore trial beg an, and that there was no need f or additional time to prepa

re beca use the defe nse had long since g iven notice that they intended to present a

n insanity defe nse. ¶ 30 The decision whether to g rant or deny a re q u es t for a continuance is committed to the sound discretion of the t rial court. See Peopl e v. W a lker
, 232 I ll. 2d 113, 125 (2009). “An abuse of discretion will be found o n l y wh ere the trial court’s ruling is arbitra ry , fanc iful,

unrea sonable, or wher e no rea sonable person would take the view adopted by the trial court.” People v. Hall
, 195 I ll. 2d 1, 20 (2000). Abuse-of -discre tion revie w is “the most defe rential standard of revie w availa b le with the exception of no revie w at all.” (Interna l quotation marks omitted.) People v. Coleman
, 183 I ll. 2d 366, 387 (1998). In the context of

-7-continuance s, reve rsal is war rante d wher e denial of a con t i n u ance “in some manner embar rasse d the acc used in the prepa ration of his defe nse and there by prejudice d his rig hts.” (Interna l quotation marks omitted.) W alker
, 232 I ll. 2d at 125 (quoting People v. Lewis
, 165 I ll. 2d 305, 327 (1995))

. In W alker
, the supreme court summarized the appropriate analy sis for this situation: “Whether there has been an abuse of di scre tio n n ecessarily depends upon the facts and circ umstances in eac h case [citations]
, and ‘[t] here is no mechan i ca l test *** for deter mining the point at which the denial of a continuance in order to acc eler ate the judicial proce ed i n gs violates the substantive rig ht of the acc used to proper ly defe nd.’ [C itation.] Fa ctors a c ourt may consider in de terminingwhether to grant a continuance
reque st by a defe ndant in a criminal case include the movant’s diligenc e, the defe ndant’s rig ht to a speedy
, fair and im p ar t i al trial and the interests of justice. [C itations.] Other rel ev an t fac tors include whether counsel for defe ndant was unable to prepa re for trial beca use he or she had been he ld to trial in another ca use [citation] , *** the complexity of the matter [citation]
, the seriousness of the char g es [citation ]
, as well as docket
manag ement, judicial economy and inconvenienc e to the parties and witnesses [citation] .” Id. at 125-26. ¶ 31 In this case , the trial court’s decision p ri m ar i l y re l i ed on defe nse counsel’s lack of dilige n c e in p r e p a

rin g for trial. Indeed, defe nse counsel acknow ledg ed during the hear ing that she was responsible for ensuring that Dr. Stone c ompleted his e valuation of defe ndant, but she stated that she had overlooke d the fac t that he had not done so. Def ense counsel offe red

no rea son for this other than that she had assumed that defe ndant’s prior counsel had g otten the full ev aluation beca

use the prior counsel had filed an answe r asser ting insanity as an aff irmative def

ense. ¶ 32 Def

endant concede s that the trial cour t considere d appropr iate factors before ruling on his motion. This makes this case distinguishable f rom W alker , in which the supre me court

reve rsed the defe ndant’s conviction beca use t he trial court summ arily denied a reque st for

a continuanc e wi thout considering any of the above- mentioned fac tors. See id. at 126-31. Def endant instead ar gu es h ere that the trial court should have balanc ed all of the fac tors befor e deciding whether a continuance was war rante d and that the trial court’s failure to do

so constitutes an abuse of discretion. Def en d an t cites no authority for this proposition, howeve r, and w e ar e aw are of none. ¶ 33 The trial court in this case considere d t h e re as o n s fo r d ef en dant’s reque st for the continuance and was well awa re of the importance of Dr. Stone’s opinion to defen d ant’s

overa ll trial strategy

. The trial court was also awa re that defe nse counsel had not been diligent and that the case had been pending for over two y ear s. Perhaps most importantly
, the trial court was informed that Dr. Stone i n t en ded to complete his evaluation of defe ndant immediately afte r the hear ing and would be able to provide his repor t t o defe nse counsel befor e th e t ri al started. Ba sed on that fac t, the trial court noted that defe ndant would not suffe r any prejudice if the trial beg an as schedule d. Under these circ umstances, the trial court did not abuse its discretion by denying de fenda

nt’s reque st for a c ontinuance.

-8-¶ 34 C. Ineff ective A ssistance of Counsel ¶ 35 Def

endant argues in the alternative that defe nse counsel was ineffe ctive beca use she did
not discover that Dr. Stone had not evalua ted defe ndant’s sanity until near ly the eve of trial. Ineff ec t ive assistance of counsel claims are revie wed under the familiar framework articulated in Strickland v. W ashington , 466 U.S. 668 (1984). See People v . Manning , 241 I ll. 2d 319, 326 (2011). In order to rec eive a new trial under this t es t , “[a] defe ndant must show that counsel’s perf

ormanc e fell below an objective standard of rea sonablene ss and that there is a rea sonable probability that, but for counsel’s unprofe ssional err ors, the result of the
proce edingwould have be en diffe rent.” Id. ¶ 36 Reg ardle ss of what we may think about defe nse counse l’s failure to obtain D r. Stone’s
repor t ear lier than the wee k befo re t ri al, we need not rea ch that issue beca use even if we

assume that counsel’s perf ormanc e was defic ient, d ef en d ant was not prejudice d. As the
supreme court has explained, “the prejudice prong of Strickland is not simply an ‘outcomedeter minative’ test but, rathe r, may be satisfied if defe ndant can show that counsel’s defic ient perf ormanc e rende red the result of the trial unreliable or the proce eding fundamentally unfair.” (Int erna l quotation marks omi tted.) Id. at 327 (quoting People v. Jack son , 205 I ll. 2d 247, 259 (2001))

. ¶ 37 In this case , the sole issue that was contested at trial wa s wh et h er d ef en dant could
appre ciate the criminality of hi s actions when he a t t ac k ed E.L

. Even though Dr. Stone did
not complete his evalua

tion of defe ndant until just befor e trial, Dr. Stone had already revie wed all of defe ndant’s medical rec ords and had alre ady interviewe d d ef endant once befor e fo r about 21⁄2 hours. The second interview that was conducte d just befor e trial was limit ed to a discussion of defe ndant’s state of mind on the date of the att ac k
, an d i t o n l y lasted 20 minutes. During the trial, Dr. Stone descr ibed in detail the bases for his opinion that defe ndant was not sane when he attacke d E.L
., and his finding s during this second interview informed only

a small part of

his opinion. ¶ 38 Def

endant argues that defe nse counsel’s f a ilu r e to g et Dr. Stone’s repor

t ear lier pre vented him from mounting an eff ective defe nse, but we cannot see how the result might rea sonably have b ee n d iffer ent had Dr. Stone completed his evaluation ear lier. Although defe ndant

asser ts that his counsel was unable to prepa re for trial beca

use she did not have Dr. Stone’s
repor t, this is contra dicted by the rec ord. When defe nse counsel asked t h e co u rt for a continuance
, she noted that she had alre ady revie wed all of the discovery in the case , which consisted of sever al box es of evidenc e. More importantly
, the rec ord reve als that defe nse counsel’s dire ct examination of Dr. Stone at trial wa s comprehe nsive and we ll prepar ed. ¶ 39 Def

endant points out that ano t h er at t o rn ey o n h is defe nse team had a g reat deal of difficulty g etting i n fo rm at ion about defendant’s social and medical history into the record during the cr oss-examination of Dr. L ourg os. Defe ndant ar gues that this same information could have been easily elicited from Dr. Stone on direc t examination if the defe nse team had been allowed more time to prepa re. This argument is specious. Although the rec ord reve als
t h at t he other defe nse attorney ran into persistent objections while attempting to el i ci t information from Dr. L ourg os, this has not hing to do with the delay in g etting Dr. S tone’s
repor t. First, none of the information that defe nse counsel soug ht to elicit from Dr. L ourg os

-9-was the product of Dr. S tone’s final 20-minute interview with defe n d ant, so we fail to see

how conducting t h at interview earlier would have chang ed any thing. Second, the rec ord

reve als that defe nse counsel’s problems in cross-e x am ination wer e due to his inability to adequately

establish foundations for the documents t hat he was attempting t o discuss with Dr. L ourg os. This is an evidentiar y and trial advoca cy failure that wo u l d n o t have been

reme died by having more tim e t o revie w Dr. Stone’s repor t. Finally
, defe nse counsel
eventua lly did succe ed in g etting defe ndant’s history befor e the jury
, albeit afte r the trial
court excused the jury and explained to defe nse counsel how to lay a prop er fo u ndation. Given these fac ts, t h er e i s nothing in the cross-e x amination of Dr. L ourg os that indicates defe ndant was pr ejudiced by the fa ilure to obtain Dr. Stone’s r eport e arlier

. ¶ 40 One point does g ive us pause. In both its cross-e x amination of Dr. Stone and its closing
argument, the State questioned Dr. Stone’s op i n i o n beca use he had found defe ndant to be insane only day s befor e the trial was se t to beg in. H ad defe nse counsel not w aited until the last minute to complete Dr. Stone’s evaluation of defe ndant, the State would not have been able to attac k Dr. Stone’s c redibility with this fact. ¶ 41 Wit h t h at s ai d, howeve r, we cannot say that this single point rea sonably undermines confide nce in the outcome of the trial or rende red it unfair. As we have noted repe atedly
, the

co re factual issue in this case was whether defe ndant understood the criminality o f h i s conduct at the time of the attack. Even leaving aside the medical and psy cholog ical opinions of the two ex p er t wi tnesses, there was ample testimony from lay witnesses that indicated defe ndant knew his assault on E.L

. was wrong

. Evidence wa s introduced that defe ndant attacke d E.L

. in a dark and seclude d are a, that he attempted to hide her from passer sby and tried to keep her quiet during the attack, and that he took other steps to avoid detec tion. Such actions are inconsistent with the claim that defe ndant could not appre ciate the criminality of his conduct. See, e.g. , People v. McCullum
, 386 I ll. App. 3d 495, 504-05 (2008) (noting that “[ e] x p er t testimony may be entirely reje cted by the trier of fac t if he or she conclude s a defe ndant was sane based on fac tors such as: whether lay testimony is based on observations made shortly befor e or afte r the crime; the exis tence of a p l an fo r t he crime; and methods undertaken by

the def endant to pre vent detec tion”). ¶ 42 In sum, even if defe nse counsel was profe ssionally neg lige nt for failing to have Dr. Stone complete his evaluation in a timely manner , there is no indication that her failure “re ndere d the result of the trial unreliable or the proce eding fundame ntally unfair.” (Interna l quotation marks omitted.) Manning
, 241 I ll. 2d at 327. Be cause defe ndant cannot satisfy the prejudice
prong of Strickland
, he is not entitled t o a n ew trial based on ineffe ctive assistance of counsel.

¶ 43 D. Appointment of Specia l State’s Attorney ¶ 44 Def

endant’ s final contention is that the trial court err ed by declining to appoint a specia l
prosec utor. On the morning of trial, defe ndant moved to have a specia l prosec utor appointed on the ground that the curr ent prosec utor had a specia l inter est in the case beca use she wa s

a compl ai n i ng witness ag ainst defe ndant in another case

. Def endant based his motion on section 3-9008 of the Counties Code (55 I L CS 5/3-9008 (West 2010)), which authorizes the

-10-trial court to appoint a specia l prosec utor “[w]henever the State’s attorney is sick or absent,

or unable to attend, or is interested in any cause or proce eding
, civil or criminal, which it is
or may be his duty

to prosecute or def

end.” ¶ 45 The parties differ as to whether this statute applies only to the remo v al o f t h e el ec ted St at e’ s At t o rney or extends to the remova l of the entire office based on the actions of i ndividual assistant State’s Attorney s. The State asser ts that the statute cannot be used to

remove an individual assistant State’s Attorney from a case or the entire office due to the alleg ed interest of a single prosec utor, but defe ndant clar ifies in his reply brief that he seeks the removal of the S tate’s Attorney ’s office as an alternative remedy to the removal of t he individual prosecutor. This issue ha s been addre ssed in othe r case s, if not e x plicitly , so we will not revisit it here

. See, e.g. , P eo p l e v. Lang
, 346 I ll. App. 3d 677 (2004) (re moval of L ake County State’s Attorney ’s office from case due to actions of assistant State’s Attorney ); Sommer v. Goetze
, 102 I ll. App. 3d 11 7 (1 9 8 1 ) (re moval of Tazewe ll County State’s Attorney ’s o ff

ice beca use an assistant State’s Attorney was the complaining witness). Moreove r, we need not rea ch this issue g iven that the trial court did not abuse its discretion in denying de fenda

nt’s motion, as we discuss furthe r below. ¶ 46 In g ener al, there are three situations in which a specia l prosec utor may be appointed: (1) the prosec utor is interested as a private individual in the case , (2) the prosec utor is an actua l party to the litigation, or (3) the prosec utor’s continued participation in the case cre ates the
appea ranc e of impropriety

. See People v. Bicke rstaff
, 403 I ll. App. 3d 347, 352 (2010). The decision of whether to appoint a specia l prosec utor is within the sound discretion of the trial court. See id

. ¶ 47 We note in passing that defe ndant conf lates the fir st and third situations at tim es in his brief, arguing that there was an ap p ea ra nce of impropriety beca use the prosec utor had a persona l interest in the case. C o n s i d er i n g t h e cases that defe ndant relies on, howeve r, i t is relatively clea

r that his ar gu m ent is that this case prese nts an appea ranc e of impropriety rathe r than a persona l interest. We reiter ate that it is important to differ entiate betwee n these two kinds of situations bec ause the analy tical framework is not the same. Compare People v. Arri ngton , 297 I ll. App. 3d 1, 3 (1998) (test for personal int ere st), with Bicker s t a ff
, 403 I ll. App. 3d at 352 (test for a ppear ance of impropriety ). ¶ 48 That said, defe ndant contends that the prosec utor’s participation in this c ase cre ated a n appea ranc e of impropr iety

beca use she was a complainingwitness in the newly filed ca ses ag ainst defe ndant. In this ty pe of situation, the proper analy sis is to balanc e “(1) the burden that would be place d on the prose cu t o r’ s o ff ice if the entire prosec utor’s office had to be disqualified; (2) how remote the connec tion is betwee n the State’s Attorney ’s office and the alleg ed conflict of interest; and (3) to what extent the public is awa re of the alleg ed conflict of interest.” (I

nterna l quotation marks omitted.) Id. (quoting Lang
, 346 I ll. App. 3d at 683). ¶ 49 The trial court considere d eac h of these fac tors prior to ruling on defe ndant’s motion. In particula r, t he prosecutor had been assigne d to this case for over t wo y ear s. Given that the trial was set to beg in that very day
, and the case involved a larg e amount of expert testimony
, medical rec ords, and discovery
, appointment of a specia l prosec utor would have require d a signific ant postponement of the case

. Moreove r, the connec tion betwee n this case and the

-11-prosec utor’s alleg ed interest in the new case s ag ainst defe ndant is attenuate d at best.

Although defe ndant argu ed t h at t he allegations that formed the basis of t he new case s had been considere d by Dr. S tone during hi s evaluation o f d ef en dant and that the prosecutor’s

name was mentioned in those repor ts, the trial court found that this connec tion was unlikely
to co m e b ef

o re the jury

. The prosec utor herse lf aver red that the new case s wer e wholly irrele vant to this case and that she did not intend to mention the fac t that the new case s wer e pending during defe ndant’s trial. This is also rele vant to the final point, g iven that both the State and the trial court indicated that the alleg ations in the new case s wer e highly unlikely
to c ome befor e the jury
, which would preve nt the jury from becoming awa re of the alleg ed conflict of inter est. ¶ 50 The trial court not only considere d all of these points during the hear ing on defe ndant’s motion but also considere d the rele vant case law, particula rly People v. Morley
, 287 I ll. App. 3d 499 (1997). The trial court’s ruling on this issue was car eful and informed, and we there fore cannot sa

y that it was an a

buse of discr etion. ¶ 51 To the extent that defe ndant relies on other case s that have found an abuse of discre tion in the decision not to appoint a special prosec utor, these cases ar e distinguishable on their fac ts. Cf. Sommer
, 102 I ll. App. 3d at 120; Lang
, 346 I ll. App. 3d at 684. In Sommer
, an assistant State’s Attorney was both the complaining witness and the assig ned prosec utor in

an administrative misconduct case ag ainst a sheriff ’s deputy

. See Sommer
, 102 I ll. App. 3d
at 118, 120. In Lang
, an assistant State’s Attorney was the complaining witness in a criminal
prosec ution ag ainst the defendant. S ee Lang
, 346 I ll. App. 3d at 678-79, 684. At trial, that

same assistant State’s Attorney was the key eyewitness in the case ag ainst the defe ndant, and his testimony was elicited by another assistant State’s Attorney from the same office

. See id. at 684. ¶ 52 Unlike both Sommer and Lang
, the prosec utor here was neither the complaining witness

nor a nece ssary witness in the case ag ai n s t defe ndant for the assault on E.L

. Other than defe ndant’s spec ulative ar guments during the m otion hearing , there was no indication that the fac t that the prosec utor was a complaining witness in an unrelated case ag ainst defe ndant was even relevant to either the State’s or defe ndant’s case. I ndeed, it was ult imately never ref err ed to at all in front o f t h e j u ry

. As defe ndant conce des, whether to appoint a specia l
prosec utor is left to the trial court’s discretion, and we f ail to see how the fac ts of this case

come e ven re motely

close to the improprie ties at issue in Sommer and Lang

.

¶ 53 I I I . CONCLUSI ON ¶ 54 For the rea sons stated above, the jury ’s verdic t was not ag ainst the manifest weight of the evidenc e, and there we re n o er rors that war rant a new trial. The judgme nt is there fore aff irmed.

¶ 55 Affir

med.

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