ILLINOIS OFFICIAL REPORTS

Appellate Court

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

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

ROBERT WEEKS, Defendant-Appellant.

 District & No. First District, Second Division

Docket No. 1-10-0395

Filed

Rehearing denied

September 27, 2011

January 25, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

In a prosecution for aggravated criminal sexual assault and attempted

murder, the jury’s finding that defendant was guilty but mentally ill was

affirmed over defendant’s contentions that he should have been found not

guilty by reason of insanity or that he should have been granted a new

trial because of the denial of his motion for a continuance, the

ineffectiveness of defense counsel, and the denial of his motion for the

appointment of a special prosecutor.

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 06-CR-22966; the

Hon. Michael Brown, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Michael J. Pelletier, Alan D. Goldberg, and Kristine A. Neal, all of the

State Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,

Michelle Katz, and Tasha-Marie Kelley, Assistant State’s Attorneys, of

counsel), for the People.

Panel JUSTICE CONNORS delivered the judgment of the court, with opinion.

Presiding Justice Quinn and Justice Cunningham concurred in the

judgment and opinion.

OPINION

¶ 1 A jury found defendant Robert Weeks guilty but mentally ill on three counts of

aggravated criminal sexual assault and one count of attempted murder. On appeal, defendant

contends that the jury’s verdict was against the manifest weight of the evidence and that he

should instead have been found not guilty by reason of insanity. Alternatively, defendant

argues that a new trial is warranted because (1) the trial court abused its discretion in failing

to grant a continuance, (2) his defense counsel was ineffective, and (3) the trial court

erroneously denied a motion to appoint a special State’s Attorney for this case. We affirm.

¶ 2 I. BACKGROUND

¶ 3 The facts surrounding the offense were essentially undisputed, and the trial centered on

the question of defendant’s sanity. We begin by briefly summarizing the evidence presented

at trial and this case’s procedural history, and we will refer to additional facts as necessary

in our analysis.

¶ 4 Defendant attacked and sexually assaulted the victim, E.L., in February 2001. As E.L.

was walking home around 1:30 a.m., defendant knocked her down from behind and dragged

her into an empty lot. E.L. attempted to scream for help, but defendant repeatedly ordered

E.L. to be quiet and began striking her in the head and face with a large rock. Defendant

struck E.L. with the rock on her head and back until she was subdued, then dragged E.L. to

a gangway in the back of the lot. Defendant climbed on top of E.L., but was interrupted when

a car drove through the alley. Defendant stopped what he was doing and ordered E.L. to be

quiet. After the car passed, defendant dragged E.L. farther into the alley, sexually assaulted

her, and fled. E.L. was eventually found bypolice officers who had been alerted to the assault

by passersby.

¶ 5 E.L. was taken to a hospital and treated for her injuries. The injuries to E.L.’s face and

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skull were severe and required the implantation of a metal plate under her eye. A sexual

assault kit was also collected at the hospital, which recovered a male DNA sample from

underneath E.L.’s fingernails. Defendant was eventuallyindicted several years later when the

DNA sample was matched to him.

¶ 6 After defendant’s indictment, the Office of the Cook County Public Defender was

appointed as counsel, but the office was required to withdraw shortly thereafter due to a

conflict of interest. After the public defender withdrew, defendant’s new private counsel 1

gave notice that she intended to pursue an affirmative defense of insanity and moved to have

defendant evaluated for fitness to stand trial.

¶ 7 The trial court conducted two fitness hearings. At the first hearing, the parties stipulated

to the testimony of Dr. Peter Lourgos, a psychiatrist who was also the assistant director of

Forensic Clinical Services for the Cook County court. According to Dr. Lourgos, defendant

was fit to stand trial with medication. The trial court agreed and found defendant fit for trial.

At the second hearing, Dr. Lourgos testified for the State and defendant presented the

testimony of Dr. Michael Stone. Whereas Dr. Lourgos opined that defendant was fit for trial,

as he had at the time of the first hearing, Dr. Stone opined that defendant was unfit for trial.

Both experts substantially agreed that defendant suffered from one or more mental illnesses,

but they differed as to whether he was able to stand trial with medication. The trial court

ultimately found defendant fit for trial with medication.

¶ 8 About six months before the scheduled trial date, defense counsel filed an emergency

motion to withdraw based on defendant’s inappropriate behavior toward her during a

meeting. The court granted the motion and reappointed the public defender, the earlier

conflict of interest having apparently been resolved.

¶ 9 Only four days before the trial was set to begin, several developments occurred that are

relevant to this appeal. On that date, which was a previously scheduled hearing on motions

in limine for this case, defendant was arraigned on five new cases. These new charges

stemmed from an incident several weeks before in which defendant allegedly threatened a

number of individuals in the courtroom, one of whom was the lead prosecutor in this case.

Also on that date, defense counsel requested that the trial date be rescheduled. According to

defense counsel, she had realized only days before that Dr. Stone, who was scheduled to

testify as the defense expert on the issue of insanity, had never rendered an opinion as to

whether defendant was legally insane when he attacked E.L. Defense counsel stated that Dr.

Stone was scheduled to complete his evaluation of defendant that afternoon, but the report

would not be available until the day before trial. After argument, the trial court denied the

motion, finding among other things that defense counsel had not made a diligent effort to

obtain Dr. Stone’s opinion and that defendant would not be prejudiced because the

evaluation would be complete and the report available before the currently scheduled trial

date.

The office represented another individual on an unrelated case who had requested DNA 1

testing, but the results of that test appeared to exonerate the other individual and implicate defendant

in the crime. 

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¶ 10 Dr. Stone met with defendant after the hearing in order to specifically discuss the

circumstances surrounding the attack on E.L. Although this meeting only lasted about 20

minutes, Dr. Stone had previously evaluated defendant’s medical records and had met with

defendant when he evaluated his fitness for trial. After the meeting, Dr. Stone opined that

defendant was insane at the time of the offense.

¶ 11 The morning of the trial, defense counsel filed a motion to appoint a special State’s

Attorney to prosecute the case. The motion was based on the fact that the lead prosecutor was

a complaining witness in the new cases that had been filed against defendant. The prosecutor

averred to the trial court that she had no special interest in this case and that the pending

charges in the new cases would not have any bearing on how she prosecuted this case. The

trial court denied the motion, finding that the prosecutor’s continued involvement would

neither affect the jury nor prejudice defendant.

¶ 12 At trial, the evidence that defendant had committed the crimewas essentially uncontested

and the case centered on defendant’s affirmative defense of insanity. Dr. Stone testified in

defendant’s favor, opining that defendant suffered from a host of mental disorders, including

bipolar-type schizoaffective disorder, polysubstance dependence, antisocial and borderline

personality disorders, viral hepatitis and lead poisoning, and severe psychosocial and

environmental problems. Based on Dr. Stone’s review of defendant’s medical records and

his interviews with defendant, Dr. Stone opined that defendant had suffered from either

schizophrenia or schizoaffective disorder when he attacked E.L. and was therefore unable

to appreciate the criminality of that action at the time.

¶ 13 In rebuttal, the State called Dr. Lourgos. Although Dr. Lourgos agreed that defendant

suffered from personality disorders and polysubstance dependence, Dr. Lourgos did not

believe defendant suffered from schizophrenia or schizoaffective disorder. Dr. Lourgos

conceded that defendant had self-reported some symptoms of these disorders, but in Dr.

Lourgos’ opinion defendant was most likely malingering. Dr. Lourgos based his opinion on

the fact that although defendant claimed that he was hearing voices, he did not present any

other symptoms that generally accompany these disorders. In Dr. Lourgos’ opinion,

defendant was able to appreciate the criminality of his actions when he attacked E.L.

¶ 14 The jury ultimately found defendant guilty but mentally ill, and the trial court sentenced

defendant to life in prison. This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 Defendant raises four issues on appeal, namely (1) whether the jury’s finding of guilty

but mentally ill was against the manifest weight of the evidence, (2) whether the trial court

erred by denying defendant’s motion for a continuance, (3) whether defense counsel was

ineffective for failing to obtain an expert opinion on the issue of defendant’s sanity until the

eve of trial, and (4) whether the trial court erred by denying defendant’s motion to appoint

a special State’s Attorney.

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¶ 17 A. Jury Verdict

¶ 18 The main issue at trial was whether defendant was insane when he assaulted E.L. Under

section 6-2(a) of the Criminal Code of 1961 (720 ILCS 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 defect, he lacks substantial capacity to appreciate the criminality of his

conduct.” Insanityis an affirmative defense (720 ILCS 5/6-4 (West 2010)), and the defendant

bears the burden of proving the defense by clear and convincing evidence (720 ILCS 5/6-2(e)

(West 2010)). If a defendant proves that he was mentally ill but fails to prove that he could 2

not appreciate the criminality of his actions, then the jury may return a verdict of guilty but 3

mentally ill. See 725 ILCS 5/115-4(j) (West 2010).

¶ 19 In this case, the jury found defendant guilty but mentally ill. On appeal, defendant attacks

the jury’s finding on the second element of the defense, arguing that he proved by clear and

convincing evidence that he could not appreciate the criminality of his actions. Defendant

urges us to vacate the jury’s verdict and enter a finding of not guilty by reason of insanity.

¶ 20 A defendant’s sanity is a question of fact, and we will not overturn the jury’s finding

unless it is against the manifest weight of the evidence. See People v. Urdiales, 225 Ill. 2d

354, 428 (2007); People v. Johnson, 146 Ill. 2d 109, 128-29 (1991). “A finding is against the

manifest weight of the evidence only if the opposite conclusion is clearly evident or if the

finding itself is unreasonable, arbitrary, or not based on the evidence presented.” People v.

Deleon, 227 Ill. 2d 322, 332 (2008). Under this relatively deferential standard of review, “ ‘a

reviewing court may not simply reweigh the evidence and substitute its judgment for that of

the jury.’ ” Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 50 (quoting Snelson v.

Kamm, 204 Ill. 2d 1, 35 (2003)).

¶ 21 Reweighing the evidence is precisely what defendant asks us to do on appeal. This case

essentially boiled down to the difference in opinion between Drs. Stone and Lourgos about

whether defendant could appreciate the criminality of his actions when he attacked E.L. The

jury heard conflicting opinions from the two expert witnesses, and based on its verdict the

jury chose to accept Dr. Lourgos’ opinion over that of Dr. Stone. Defendant argues on appeal

that Dr. Stone’s opinion should have been given more weight than Dr. Lourgos’ because it

was better supported. Defendant relies on four specific factors: (1) the interview

environment, (2) the use of psychological tests, (3) contemporaneous diagnoses, and (4)

defendant’s social, physical, and mental history.

¶ 22 Regardingthe interviewenvironment, the evidence indicated that defendant was shackled

when Dr. Lourgos interviewed him the first time, although it is unclear whether defendant

The State retains the burden of proving the elements of the offense beyond a reasonable 2

doubt (720 ILCS 5/6-2(e) (West 2010)), but that is not at issue in this appeal.

It should be noted that although a defendantmust prove the elements of the insanity defense

3

by clear and convincing evidence (720 ILCS 5/6-2(e) (West 2010)), the defendant need only prove

by a preponderance of the evidence that he suffered from a mental illness in order to be found guilty

but mentally ill (720 ILCS 5/115-4(j) (West 2010)).

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was shackled during the second interview. Defendant argues that this fact rendered Dr.

Lourgos’ evaluation of defendant suspect, pointing to testimony by Dr. Stone that it was his

experience that meeting with patients unshackled and alone was the best way to ensure an

effective interview.

¶ 23 Defendant also points to Dr. Stone’s use of psychological tests during his interviews with

defendant. Dr. Stone performed two tests, the Test of MemoryMalingering (TOMM) and the

Minnesota Multiphasic Personality Inventory (MMPI). Based on defendant’s performance

on the TOMM, Dr. Stone opined that defendant was not malingering, that is, he was not

making up his psychotic symptoms. Dr. Lourgos did not perform any psychological tests

during his interviews, and in his opinion defendant was falsely reporting that he was hearing

voices. When asked about this point during cross-examination, he stated that there was no

need to perform either test. Dr. Lourgos explained that the TOMM was designed to test

whether a person who claimed not to remember something was in fact having memory

problems, and he explained that the MMPI was designed to create a personality profile, not

to diagnose mental illnesses. Dr. Lourgos stated that the tests were neither necessary nor

helpful in order to determine whether defendant was hearing voices or not.

¶ 24 Defendant also notes that neither Dr. Stone nor Dr. Lourgos evaluated him for sanity until

between six and eight years after the attack on E.L. Because of the lapse in time, defendant

argues that diagnoses of defendant by other psychiatrists around the time of the attack are

crucial evidence regarding his sanity at that time. Only three days after the attack, defendant

checked himself into Saint Elizabeth’s Hospital for psychiatric treatment. Dr. Stone testified

that he reviewed and relied on four particular psychiatric reports on defendant that were

written within a month or so of the attack. During this time, defendant was diagnosed with

schizophrenia twice, schizoaffective disorder twice, and depression once. Defendant was

prescribed various antidepressant and antipsychotic medications, including Haldol, Prozac,

Depakote, and Cogentin. Dr. Stone testified that these contemporaneous findings bolstered

his opinion that defendant was not sane at the time of the attack.

¶ 25 Dr. Lourgos, however, also reviewed these records and did not find them to be

particularly suggestive that defendant was insane at the time. Dr. Lourgos noted that there

were numerous notations in defendant’s record from other psychiatrists indicating that

defendant may have been malingering. Dr. Lourgos also noted that the previous diagnoses

of schizophrenia and schizoaffective disorder were for the most part provisional and were

based solely on defendant’s self report that he heard voices. Dr. Lourgos found it notable that

although defendant reported hearing voices, therewas no evidence in his medical records that

he suffered from anyother objective symptoms that normallyaccompanythese disorders. Dr.

Lourgos also observed that defendant had been taken off of his medications during 2001-03

in order to determine whether defendant was malingering and defendant appeared to suffer

no adverse effects, a fact that Dr. Lourgos found very telling.

¶ 26 Defendant finallypoints to the two doctors’ disparate consideration of defendant’s social,

physical, and mental history. Both doctors testified that they reviewed ample records that

indicated defendant suffered severe physical and emotional abuse as a child, and that he had

significant mental health and drug abuse problems beginning at an early age. Dr. Lourgos

testified that he did not find this history particularly useful in coming to his diagnosis,

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primarily because most of the records describing these issues were not created by mental

health professionals and were therefore missing important diagnostic information. Dr.

Lourgos conceded that all data is helpful in reaching a diagnosis, but he testified that his own

observations and other records were more useful in this case.

¶ 27 The jury heard all of this evidence. The two experts disagreed about which records and

facts were helpful and which were not, and they disagreed in their ultimate conclusions on

the impact of these records and facts on the question of defendant’s sanity. There is nothing

in the record, however, that indicates Dr. Lourgos came to his conclusion arbitrarily.

Although defendant would have us reweigh the evidence and come to our own conclusion

about what weight each expert’s opinion should be given, the supreme court has long

cautioned that “the appellate court should not usurp the function of the jury and substitute

its judgment on questions of fact fairly submitted, tried, and determined from the evidence

which did not greatly preponderate either way.” Maple v. Gustafson, 151 Ill. 2d 445, 452-53

(1992). It is the jury’s place, not ours, “to resolve conflicts in the evidence, to pass upon the

credibility of the witnesses, and to decide what weight should be given to the witnesses’

testimony.” Id. at 452 (citing People v. Holmes, 141 Ill. 2d 204, 243 (1990)). Defendant has

not brought to our attention any evidence from the record showing that it is clearly evident

that defendant could not appreciate the criminality of his actions when he attacked E.L. The

jury’s verdict of guilty but mentally ill was accordingly not against the manifest weight of

the evidence.

¶ 28 B. Continuance

¶ 29 Defendant next argues that it was error for the trial court to deny defense counsel’s

motion for a continuance. At the motion in limine hearing that was held four days before

defendant’s trial was scheduled to begin, defense counsel filed a motion for a continuance.

Defense counsel had been reappointed to represent defendant six months before, but she

averred that she had just discovered that Dr. Stone had never rendered an opinion on

defendant’s sanity. Given that defendant intended to present insanity as an affirmative

defense, defense counsel stated that she could not adequately represent defendant without

additional time to prepare for trial after reviewing Dr. Stone’s report. The trial court denied

the motion, noting that defense counsel had already had six months in which to obtain a

report from Dr. Stone. The trial court also noted that defendant would not be prejudiced since

defense counsel would receive the report before trial began, and that there was no need for

additional time to prepare because the defense had long since given notice that they intended

to present an insanity defense.

¶ 30 The decision whether to grant or deny a request for a continuance is committed to the

sound discretion of the trial court. See People v. Walker, 232 Ill. 2d 113, 125 (2009). “An

abuse of discretion will be found only where the trial court’s ruling is arbitrary, fanciful,

unreasonable, or where no reasonable person would take the view adopted by the trial court.”

People v. Hall, 195 Ill. 2d 1, 20 (2000). Abuse-of-discretion review is “the most deferential

standard of review available with the exception of no review at all.” (Internal quotation

marks omitted.) People v. Coleman, 183 Ill. 2d 366, 387 (1998). In the context of

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continuances, reversal is warranted where denial of a continuance “in some manner

embarrassed the accused in the preparation of his defense and thereby prejudiced his rights.”

(Internal quotation marks omitted.) Walker, 232 Ill. 2d at 125 (quoting People v. Lewis, 165

Ill. 2d 305, 327 (1995)). In Walker, the supreme court summarized the appropriate analysis

for this situation:

“Whether there has been an abuse of discretion necessarily depends upon the facts

and circumstances in each case [citations], and ‘[t]here is no mechanical test *** for

determining the point at which the denial of a continuance in order to accelerate the

judicial proceedings violates the substantive right of the accused to properly defend.’

[Citation.] Factors a court may consider in determining whether to grant a continuance

request by a defendant in a criminal case include the movant’s diligence, the defendant’s

right to a speedy, fair and impartial trial and the interests of justice. [Citations.] Other

relevant factors include whether counsel for defendant was unable to prepare for trial

because he or she had been held to trial in another cause [citation], *** the complexity

of the matter [citation], the seriousness of the charges [citation], as well as docket

management, judicial economy and inconvenience to the parties and witnesses

[citation].” Id. at 125-26.

¶ 31 In this case, the trial court’s decision primarily relied on defense counsel’s lack of

diligence in preparing for trial. Indeed, defense counsel acknowledged during the hearing that

she was responsible for ensuring that Dr. Stone completed his evaluation of defendant, but

she stated that she had overlooked the fact that he had not done so. Defense counsel offered

no reason for this other than that she had assumed that defendant’s prior counsel had gotten

the full evaluation because the prior counsel had filed an answer asserting insanity as an

affirmative defense.

¶ 32 Defendant concedes that the trial court considered appropriate factors before ruling on

his motion. This makes this case distinguishable from Walker, in which the supreme court

reversed the defendant’s conviction because the trial court summarily denied a request for

a continuance without considering any of the above-mentioned factors. See id. at 126-31.

Defendant instead argues here that the trial court should have balanced all of the factors

before deciding whether a continuance was warranted and that the trial court’s failure to do

so constitutes an abuse of discretion. Defendant cites no authority for this proposition,

however, and we are aware of none.

¶ 33 The trial court in this case considered the reasons for defendant’s request for the

continuance and was well aware of the importance of Dr. Stone’s opinion to defendant’s

overall trial strategy. The trial court was also aware that defense counsel had not been

diligent and that the case had been pending for over two years. Perhaps most importantly, the

trial court was informed that Dr. Stone intended to complete his evaluation of defendant

immediately after the hearing and would be able to provide his report to defense counsel

before the trial started. Based on that fact, the trial court noted that defendant would not

suffer any prejudice if the trial began as scheduled. Underthese circumstances, the trial court

did not abuse its discretion by denying defendant’s request for a continuance.

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¶ 34 C. Ineffective Assistance of Counsel

¶ 35 Defendant argues in the alternative that defense counsel was ineffective because she did

not discover that Dr. Stone had not evaluated defendant’s sanity until nearly the eve of trial.

Ineffective assistance of counsel claims are reviewed under the familiar framework

articulated in Strickland v. Washington, 466 U.S. 668 (1984). See People v. Manning, 241

Ill. 2d 319, 326 (2011). In order to receive a new trial under this test, “[a] defendant must

show that counsel’s performance fell below an objective standard of reasonableness and that

there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id.

¶ 36 Regardless of what we may think about defense counsel’s failure to obtain Dr. Stone’s

report earlier than the week before trial, we need not reach that issue because even if we

assume that counsel’s performance was deficient, defendant was not prejudiced. As the

supreme court has explained, “the prejudice prong of Strickland is not simply an ‘outcomedeterminative’ test but, rather, maybe satisfied if defendant can show that counsel’s deficient

performance rendered the result of the trial unreliable or the proceeding fundamentally

unfair.” (Internal quotation marks omitted.) Id. at 327 (quoting People v. Jackson, 205 Ill.

2d 247, 259 (2001)).

¶ 37 In this case, the sole issue that was contested at trial was whether defendant could

appreciate the criminality of his actions when he attacked E.L. Even though Dr. Stone did

not complete his evaluation of defendant until just before trial, Dr. Stone had already

reviewed all of defendant’s medical records and had already interviewed defendant once

before for about 21⁄2 hours. The second interview that was conducted just before trial was

limited to a discussion of defendant’s state of mind on the date of the attack, and it only

lasted 20 minutes. During the trial, Dr. Stone described in detail the bases for his opinion that

defendant was not sane when he attacked E.L., and his findings during this second interview

informed only a small part of his opinion.

¶ 38 Defendant argues that defense counsel’s failure to get Dr. Stone’s report earlier prevented

him from mounting an effective defense, but we cannot see how the result might reasonably

have been different had Dr. Stone completed his evaluation earlier. Although defendant

asserts that his counsel was unable to prepare for trial because she did not have Dr. Stone’s

report, this is contradicted by the record. When defense counsel asked the court for a

continuance, she noted that she had already reviewed all of the discovery in the case, which

consisted of several boxes of evidence. More importantly, the record reveals that defense

counsel’s direct examination of Dr. Stone at trial was comprehensive and well prepared.

¶ 39 Defendant points out that another attorney on his defense team had a great deal of

difficulty getting information about defendant’s social and medical history into the record

during the cross-examination of Dr. Lourgos. Defendant argues that this same information

could have been easily elicited from Dr. Stone on direct examination if the defense team had

been allowed more time to prepare. This argument is specious. Although the record reveals

that the other defense attorney ran into persistent objections while attempting to elicit

information from Dr. Lourgos, this has nothing to do with the delay in getting Dr. Stone’s

report. First, none of the information that defense counsel sought to elicit from Dr. Lourgos

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was the product of Dr. Stone’s final 20-minute interview with defendant, so we fail to see

how conducting that interview earlier would have changed anything. Second, the record

reveals that defense counsel’s problems in cross-examination were due to his inability to

adequately establish foundations for the documents that he was attempting to discuss with

Dr. Lourgos. This is an evidentiary and trial advocacy failure that would not have been

remedied by having more time to review Dr. Stone’s report. Finally, defense counsel

eventually did succeed in getting defendant’s history before the jury, albeit after the trial

court excused the jury and explained to defense counsel how to lay a proper foundation.

Given these facts, there is nothing in the cross-examination of Dr. Lourgos that indicates

defendant was prejudiced by the failure to obtain Dr. Stone’s report earlier.

¶ 40 One point does give us pause. In both its cross-examination of Dr. Stone and its closing

argument, the State questioned Dr. Stone’s opinion because he had found defendant to be

insane only days before the trial was set to begin. Had defense counsel not waited until the

last minute to complete Dr. Stone’s evaluation of defendant, the State would not have been

able to attack Dr. Stone’s credibility with this fact.

¶ 41 With that said, however, we cannot say that this single point reasonably undermines

confidence in the outcome of the trial or rendered it unfair. As we have noted repeatedly, the

core factual issue in this case was whether defendant understood the criminality of his

conduct at the time of the attack. Even leaving aside the medical and psychological opinions

of the two expert witnesses, there was ample testimony from lay witnesses that indicated

defendant knew his assault on E.L. was wrong. Evidence was introduced that defendant

attacked E.L. in a dark and secluded area, that he attempted to hide her from passersby and

tried to keep her quiet during the attack, and that he took other steps to avoid detection. Such

actions are inconsistent with the claim that defendant could not appreciate the criminality of

his conduct. See, e.g., People v. McCullum, 386 Ill. App. 3d 495, 504-05 (2008) (noting that

“[e]xpert testimony may be entirely rejected by the trier of fact if he or she concludes a

defendant was sane based on factors such as: whether lay testimony is based on observations

made shortly before or after the crime; the existence of a plan for the crime; and methods

undertaken by the defendant to prevent detection”).

¶ 42 In sum, even if defense counsel was professionally negligent for failing to have Dr. Stone

complete his evaluation in a timely manner, there is no indication that her failure “rendered

the result of the trial unreliable or the proceeding fundamentally unfair.” (Internal quotation

marks omitted.) Manning, 241 Ill. 2d at 327. Because defendant cannot satisfy the prejudice

prong of Strickland, he is not entitled to a new trial based on ineffective assistance of

counsel.

¶ 43 D. Appointment of Special State’s Attorney

¶ 44 Defendant’s final contention is that the trial court erred by declining to appoint a special

prosecutor. On the morning of trial, defendant moved to have a special prosecutor appointed

on the ground that the current prosecutor had a special interest in the case because she was

a complaining witness against defendant in another case. Defendant based his motion on

section 3-9008 of the Counties Code (55 ILCS 5/3-9008 (West 2010)), which authorizes the

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trial court to appoint a special prosecutor “[w]henever the State’s attorney is sick or absent,

or unable to attend, or is interested in any cause or proceeding, civil or criminal, which it is

or may be his duty to prosecute or defend.”

¶ 45 The parties differ as to whether this statute applies only to the removal of the elected

State’s Attorney or extends to the removal of the entire office based on the actions of

individual assistant State’s Attorneys. The State asserts that the statute cannot be used to

remove an individual assistant State’s Attorney from a case or the entire office due to the

alleged interest of a single prosecutor, but defendant clarifies in his reply brief that he seeks

the removal of the State’s Attorney’s office as an alternative remedy to the removal of the

individual prosecutor. This issue has been addressed in other cases, if not explicitly, so we

will not revisit it here. See, e.g., People v. Lang, 346 Ill. App. 3d 677 (2004) (removal of

Lake CountyState’s Attorney’s office from case due to actions of assistant State’s Attorney);

Sommer v. Goetze, 102 Ill. App. 3d 117 (1981) (removal of Tazewell County State’s

Attorney’s office because an assistant State’s Attorney was the complaining witness).

Moreover, we need not reach this issue given that the trial court did not abuse its discretion

in denying defendant’s motion, as we discuss further below.

¶ 46 In general, there are three situations in which a special prosecutor may be appointed: (1)

the prosecutor is interested as a private individual in the case, (2) the prosecutor is an actual

party to the litigation, or (3) the prosecutor’s continued participation in the case creates the

appearance of impropriety. See People v. Bickerstaff, 403 Ill. App. 3d 347, 352 (2010). The

decision of whether to appoint a special prosecutor is within the sound discretion of the trial

court. See id.

¶ 47 We note in passing that defendant conflates the first and third situations at times in his

brief, arguing that there was an appearance of impropriety because the prosecutor had a

personal interest in the case. Considering the cases that defendant relies on, however, it is

relatively clear that his argument is that this case presents an appearance of impropriety

rather than a personal interest. We reiterate that it is important to differentiate between these

two kinds of situations because the analytical framework is not the same. Compare People

v. Arrington, 297 Ill. App. 3d 1, 3 (1998) (test for personal interest), with Bickerstaff, 403

Ill. App. 3d at 352 (test for appearance of impropriety).

¶ 48 That said, defendant contends that the prosecutor’s participation in this case created an

appearance of impropriety because she was a complaining witness in the newly filed cases

against defendant. In this type of situation, the proper analysis is to balance “(1) the burden

that would be placed on the prosecutor’s office if the entire prosecutor’s office had to be

disqualified; (2) how remote the connection is between the State’s Attorney’s office and the

alleged conflict of interest; and (3) to what extent the public is aware of the alleged conflict

of interest.” (Internal quotation marks omitted.) Id. (quoting Lang, 346 Ill. App. 3d at 683).

¶ 49 The trial court considered each of these factors prior to ruling on defendant’s motion. In

particular, the prosecutor had been assigned to this case for over two years. Given that the

trial was set to begin that very day, and the case involved a large amount of expert testimony,

medical records, and discovery, appointment of a special prosecutor would have required a

significant postponement of the case. Moreover, the connection between this case and the

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prosecutor’s alleged interest in the new cases against defendant is attenuated at best.

Although defendant argued that the allegations that formed the basis of the new cases had

been considered by Dr. Stone during his evaluation of defendant and that the prosecutor’s

name was mentioned in those reports, the trial court found that this connection was unlikely

to come before the jury. The prosecutor herself averred that the new cases were wholly

irrelevant to this case and that she did not intend to mention the fact that the new cases were

pending during defendant’s trial. This is also relevant to the final point, given that both the

State and the trial court indicated that the allegations in the new cases were highly unlikely

to come before the jury, which would prevent the jury from becoming aware of the alleged

conflict of interest.

¶ 50 The trial court not only considered all of these points during the hearing on defendant’s

motion but also considered the relevant case law, particularlyPeople v. Morley, 287 Ill. App.

3d 499 (1997). The trial court’s ruling on this issue was careful and informed, and we

therefore cannot say that it was an abuse of discretion.

¶ 51 To the extent that defendant relies on other cases that have found an abuse of discretion

in the decision not to appoint a special prosecutor, these cases are distinguishable on their

facts. Cf. Sommer, 102 Ill. App. 3d at 120; Lang, 346 Ill. App. 3d at 684. In Sommer, an

assistant State’s Attorney was both the complaining witness and the assigned prosecutor in

an administrative misconduct case against a sheriff’s deputy. See Sommer, 102 Ill. App. 3d

at 118, 120. In Lang, an assistant State’s Attorney was the complaining witness in a criminal

prosecution against the defendant. See Lang, 346 Ill. App. 3d at 678-79, 684. At trial, that

same assistant State’s Attorneywas the key eyewitness in the case against the defendant, 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 prosecutor here was neither the complaining witness

nor a necessary witness in the case against defendant for the assault on E.L. Other than

defendant’s speculative arguments during the motion hearing, there was no indication that

the fact that the prosecutor was a complaining witness in an unrelated case against defendant

was even relevant to either the State’s or defendant’s case. Indeed, it was ultimately never

referred to at all in front of the jury. As defendant concedes, whether to appoint a special

prosecutor is left to the trial court’s discretion, and we fail to see how the facts of this case

come even remotely close to the improprieties at issue in Sommer and Lang.

¶ 53 III. CONCLUSION

¶ 54 For the reasons stated above, the jury’s verdict was not against the manifest weight of the

evidence, and there were no errors that warrant a new trial. The judgment is therefore

affirmed.

¶ 55 Affirmed.

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