                                                             FIRST DIVISION
                                                             DECEMBER 22, 2008




No. 1-07-3362


THE PEOPLE OF THE STATE OF ILLINOIS,                         )      Appeal from the
                                                             )      Circuit Court of
                               Plaintiff-Appellee,           )      Cook County.
                                                             )
                v.                                           )      No. 03 CR 25508
                                                             )
PIERRE HOUSEWORTH,                                           )      Honorable
                                                             )      James M. Obbish,
                               Defendant-Appellant.          )      Judge Presiding.

         PRESIDING JUSTICE ROBERT E. GORDON delivered the opinion of the

court:

         This case involves the first-degree-murder trial of defendant Pierre Houseworth,

age 21, for the stabbing death of Naomi Quashie, who at the time of her death was 20

years old. Defendant and Naomi had dated on and off for several years prior to October

17, 2003, the date of Naomi’s death. Defendant and Naomi had “broken up” a few

months before October 17, 2003. On the afternoon of that day, defendant used public

transportation to travel from his home on Chicago’s west side to Chicago’s north side

where Naomi lived with her mother at 2837 ½ North Sawyer Avenue with the hope of

reconciling his relationship with Naomi. Defendant and Naomi spoke outside of her

home; a physical conflict ensued, which ended when defendant stabbed Naomi multiple

times, causing her death. Defendant fled, discarded the murder weapon, and boarded a
No. 1-07-3362

Chicago Transit Authority (CTA) elevated train. He was arrested soon thereafter and

provided verbal inculpatory statements to police and prosecutors.

       Defendant was indicted for first-degree murder. He pleaded not guilty and

asserted the affirmative defense of insanity. 720 ILCS 5/6-2 (West 2004). The main

issue at trial involved whether defendant was sane at the time of the offense, and

conflicting expert testimony was presented to that effect. Following a bench trial, the

trial court found defendant sane at the time of the offense and found him guilty but

mentally ill (720 ILCS 5/6-2(c) (West 2004) (“[a] person who, at the time of the

commission of a criminal offense, was not insane but was suffering from a mental illness,

is not relieved of criminal responsibility for his conduct and may be found guilty but

mentally ill”)), of the first-degree murder of Naomi. A sentencing hearing was

conducted where mitigation and aggravation were presented. The trial court sentenced

defendant to a 30-year term in the Illinois Department of Corrections. Defendant filed a

motion for a new trial, which was denied. On appeal, defendant argues that (1) the trial

court’s finding that defendant was sane at the time of the offense was against the

manifest weight of the evidence, and (2) he received ineffective assistance of counsel.

We affirm.

                                   I. BACKGROUND

       On October 17, 2003, Naomi resided with her mother at 2837 ½ North Sawyer

Avenue in Chicago. Naomi’s mother, Janet Quashie, testified at trial. She testified that

she has known defendant for several years because he and Naomi had dated, on and off,



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No. 1-07-3362

since Naomi was 13 years old; they had broken up about three months prior to October

2003. She testified that Naomi had lived with defendant in the past.

             A. The Homicide, Arrest, and Postarrest Inculpatory Statements

       At around 7:30 p.m. on October 17, 2003, Mrs. Quashie was home alone

watching television and having dinner. After she finished her dinner, she walked to her

apartment’s kitchen, when she heard defendant’s and Naomi’s voices coming from

outdoors through an open window. She heard Naomi say, “Why do you want to do this

to me? Please, please, please, I am begging you, don’t do this. Don’t do this.” Mrs.

Quashie opened her apartment’s back door and observed defendant “standing there in

front of my daughter *** waiting for her to pass out for good so that he can leave.”

       Defendant, who was carrying a black backpack, fled. Mrs. Quashie pursued

defendant through an alley but was unable to catch him. She testified that defendant ran

toward the CTA’s Kedzie Street train station. She returned home and called the police.

Naomi had been stabbed multiple times about her face and body. Ms. Quashie testified

that she knew “he [defendant] just killed my daughter.”

       Chicago police officer Retamozo (whose first name is not included in the record)

testified that pursuant to a police dispatch, which included defendant’s name and

description, he, his partner, Officer Trempe, and several other Chicago police officers

stopped a CTA train at the Logan Square train station (one stop south of the Kedzie

Street train station) at approximately 7:30 p.m. on October 17, 2003. A search of the

train resulted in defendant’s arrest. Defendant was read his Miranda warnings. The

police recovered a large steak knife from defendant’s backpack, which had no blood on

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No. 1-07-3362

it. Defendant was then transported in Officer’s Retamozo’s police motor vehicle to the

Area 5 police headquarters located on Grand and Central Avenues in Chicago. While in

transit to the police station, defendant stated that he went to Naomi’s home to reconcile

with her. After defendant and Naomi argued, defendant told Naomi that he was going to

commit suicide. Naomi urged defendant to “go ahead and do it.” Defendant, who had

visible scratches on his face, then told the officers that he struck Naomi and that she

retaliated by scratching his face. Defendant stated that he then “took out the knife,” but

did not admit that he stabbed Naomi.

       A certified copy of the medical examiner’s report prepared by Dr. Denton (whose

first name is not disclosed by this record), who performed the autopsy, was admitted into

evidence without objection, and the defense stipulated that if Dr. Denton was called to

testify, he would testify that to a reasonable degree of medical certainty, Naomi died as a

result of multiple stab wounds.

       Chicago police detective John Trahanas testified that on October 17, 2003, he and

his since-retired partner, Detective Janet Howard, visited the crime scene and later spoke

to Mrs. Quashie at the Area 5 police station. Detective Trahanas interviewed defendant

at around 9:30 p.m. on October 17, 2003. The detective read defendant his Miranda

warnings, which defendant acknowledged and waived before making a statement.

Assistant Cook County State’s Attorney James Papa arrived at Area 5 at about 11:30 p.m.

that same evening and took defendant’s statement after reading him his Miranda

warnings.



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No. 1-07-3362

       Defendant consented to have his statement videotaped. Assistant Cook County

State’s Attorney Lorna Amado-Chevlin arrived at Area 5, read defendant his Miranda

warnings, obtained defendant’s consent to videotape his statement, and took his

videotaped statement at around 3 a.m. the following morning.1 Defendant repeatedly

claimed that he had traveled to Naomi’s home to reconcile with her and never admitted

that he desired to kill her. Defendant admitted that he traveled to Naomi’s home the

evening of October 17, 2003, with two large steak knives in his possession. He admitted

that after the physical altercation with Naomi, he removed one of the knives from the

black backpack he was carrying. He did not remember stabbing Naomi. The next thing

he remembers after removing the knife was someone screaming. He then saw blood on

Naomi, himself, and the knife he was holding. Defendant fled and discarded the knife

with the blood on it in a sewer. Defendant was never asked if he was suffering from a

mental illness, if he was on medication, or if he had any general health problems.

Defendant was also never asked why he was carrying a steak knife.

       Brian Schoon, a DNA analyst at the Illinois State Police crime laboratory, tested

DNA recovered from defendant’s shoes and found that it matched Naomi’s DNA.




       1
           The record reveals that the videotape was played in open court; however, the

videotape is not included in the record on appeal.

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No. 1-07-3362

                     B. Defendant’s Social and Mental Health History

       The epicenter at trial involved conflicting expert testimony regarding whether

defendant was sane at the time of Naomi’s slaying. A review of defendant’s social and

mental health history, including his prearrest and postarrest mental health medical

treatment, is necessary for an understanding of the psychiatric opinions offered by the

experts in the case at bar. The following recitation is taken from the past histories

prepared by the experts in this case.

       The record reveals that defendant was a low-birth-weight identical twin born to a

single mother. Defendant and his twin brother spent three years in foster care as young

children, although the record of this case does not reveal their exact ages at that time.

There is some evidence in the record to suggest that they may have been abused sexually

while in the foster care setting. Both defendant and his twin brother had “learning

difficulties” but defendant was “slower” than his brother. Both were placed into special

education classes. Defendant’s brother advanced at a greater scholastic pace and was

eventually placed into regular classes. From that point, they were educated separately

but depended on each other for emotional support. Defendant was “very close” to his

brother.

       At the age of 13, defendant’s brother drowned in a swimming pool accident while

they were on a school field trip. From one of the medical reports, defendant recalled

observing a teacher pull his brother from the water and begin the administration of

cardiopulmonary resuscitation (CPR). An ambulance arrived. Defendant’s brother was

pronounced dead at the hospital.

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No. 1-07-3362

        Defendant’s personality changed after his brother’s death. He became depressed

with frequent crying spells. He appeared careless and often expressed suicidal ideations.

His behavior in school changed and he began having disciplinary problems. He was

arrested for pushing a female classmate into a locker. He began having problems at

home and began stealing from his mother. One of the medical reports states that

defendant considered suicide, but did not act on his feeling “out of fear.” He was

evaluated and found to be clinically depressed as early as 2000 when he expressed

feelings of worthlessness and guilt for his brother’s death. Defendant was eventually

prescribed Prozac, an antidepressant medication. In 2000 defendant was struck in the

head with a bicycle; he was taken to the emergency room and released almost

immediately. In 2002, defendant attempted suicide on two occasions. During the first

attempt, defendant drank large amounts of vodka and ingested large amounts of aspirin.

During the second attempt, he cut his left thigh with a razor blade. He reported, “I only

bled a lot. I did not die.”

        One of the medical reports states that Naomi had lived with defendant and his

mother at one point in time. Defendant’s mother reported that defendant and Naomi

argued constantly. Naomi was disrespectful to defendant’s mother and “ran up”

expensive telephone bills when she called psychic hotlines. Defendant’s mother

eventually asked Naomi to leave her home.

        In 2003, defendant was battered by four males on the street utilizing a “2 x 4

foot” wooden plank. He sustained a fractured arm. One of the expert’s reports states that



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No. 1-07-3362

defendant was rendered unconscious although the ambulatory services report from that

day reveals no mention of defendant being rendered unconscious.

        Defendant received mental health treatment after his arrest for the crime in

question. Medical records from Cermak Health Services (Cermak) in Chicago reveal that

defendant was prescribed three psychotropic medications including Effexor, an

antidepressant, Depakote, a mood stabilizer, and Geodon, an antipsychotic medication.

The medical records from Cermak reveal that defendant had “self-report[s] of auditory

hallucination[s]” where defendant reported hearing Naomi speaking to him after her

death. Defendant attempted suicide while incarcerated.

        Prior to trial, the trial court ordered a behavioral clinical examination (BCX) to

determine defendant’s fitness to stand trial, ability to understand Miranda warnings, and

sanity. In Illinois, a defendant is fit to stand trial if he “ ‘has sufficient present ability to

consult with defense counsel with a reasonable degree of rational understanding and ***

has both a rational and factual understanding of the proceedings.’ ” (Emphasis omitted.)

People v. Schoreck, 384 Ill. App. 3d 904, 916 (2008), quoting People v. Baugh, 358 Ill.

App. 3d 718, 732 (2005). The definition of “fit to stand trial,” differs from the Illinois

definition of “insanity.” In Illinois, a person is insane and not “criminally responsible for

conduct if at the time of such conduct, as a result of mental disease or mental defect, he

lacks the substantial capacity to appreciate the criminality of his conduct.” 720 ILCS

5/6-2(a) (West 2004). The BCX conducted at Cook County Forensic Clinical Services

concluded that defendant was fit to stand trial, had the ability to understand Miranda



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No. 1-07-3362

warnings, and was sane at the time of the administration of the BCX. No issue is raised

in this appeal that defendant was not fit to stand trial.

                                   C. Pretrial Proceedings

        On the day that defendant’s bench trial was scheduled to commence, defendant

requested leave to file a motion to suppress his postarrest inculpatory statements. In

requesting leave, defense counsel stated that the motion “ha[d] nothing to do with the

trial” because defendant had already been evaluated as able to comprehend Miranda

warnings. Trial counsel sought leave to file the motion to properly “perfect the record”

and that the motion was “housekeeping.” The State objected to the motion as being

untimely.

        On record, the trial court stated that the motion was more than “housekeeping”

and suggested that the parties reach a resolution. After a short recess, the parties

answered ready for trial. At that time, defense counsel stated that he had considered

filing a motion to suppress defendant’s postarrest inculpatory statements, “[b]ut after

considering all the information at my disposal, I felt that it was not in the best interest of

my client to proceed on this motion at this time, so we’ll proceed directly to trial.”




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No. 1-07-3362

   D. Expert Testimony Regarding Defendant’s Sanity at the time of Naomi’s Slaying

        Defendant presented the testimony of Dr. Patricia Newton, a psychiatrist for 35

years, who is licensed to practice psychiatry in Maryland. Dr. Newton testified that she

had never testified in Illinois on the issue of sanity.

        On direct examination, Dr. Newton testified that she was contacted by defense

counsel to evaluate defendant and that she subsequently interviewed defendant for a

duration of three hours while he was incarcerated at the Cook County correctional

facility. At that time, defendant was medicating with three different psychotropic

medications prescribed by Cermak. Dr. Newton testified that during the interview she

took a “previous history” of defendant to formulate a “longitudinal profile *** [which]

means what his life or what his mental status ha[d] been like over time.” Dr. Newton

testified that defendant had experienced three past traumatic events that influenced his

mental status. The first event occurred when, at the age of 13, defendant’s identical twin

brother drowned in a swimming pool accident during a school field trip. Dr. Newton

testified that defendant had been “evaluated psychologically and found to be depressed

and in need of treatment.” The second event occurred in 2000, when he was struck in the

head with a bicycle; defendant was admitted and released from the emergency room.

The third event occurred in 2003, when defendant was battered by four people using a “2

x 4 foot” wooden plank, which resulted in a fractured arm and unconsciousness.

Defendant was hospitalized after the 2003 incident.

        Dr. Newton also testified that she interviewed defendant’s mother, reviewed some

of defendant’s medical records, and ordered an electroencephalography (EEG), a

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No. 1-07-3362

diagnostic examination utilized to detect electrical disturbances in the brain, in preparing

her evaluation. The “awake EEG” did not reveal electrical disturbances in defendant’s

brain. She also testified that although she had ordered an “asleep EEG,” that test was

never performed. Based upon her interview of defendant and defendant’s mother, and

her review of some of defendant’s medical records, Dr. Newton opined that “[defendant]

was not criminally responsible for his conduct at the time of the alleged incident resulting

in the death of Naomi. [Defendant] at the time was not capable of conforming his

behavior to the letter of the law.” Dr. Newton testified that defendant suffered amnesia

when he was struck in the face by Naomi on October 17, 2003, and that he could not

recall the events that transpired immediately thereafter. Dr. Newton testified that

defendant “came to consciousness” when someone screamed and that defendant “did not

have a memory of what was going on until someone screamed and he looked and saw the

blood and then he ran.”

       Dr. Newton testified that she diagnosed defendant with posttraumatic stress

disorder and postconcussion syndrome, which the doctor explained as “a series of

symptoms that occurs after the event of head trauma.” Dr. Newton testified that

postconcussion syndrome involves three elements or components including (1) physical,

(2) emotional, and (3) cognitive. Dr. Newton testified that the physical component of

postconcussion syndrome was not an issue in the case at bar. She testified that

“emotional issues have to do around irritability, have to do around depression, anxiety;

those things.” She testified that “[t]he cognitive areas, though, which have been

documented pretty well in people’s postconcussion syndrome have to do with a person’s

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No. 1-07-3362

judgment, a person’s ability to recall certain events, a person’s ability to be able to have

association; in other words, to associate symptoms from one situation to another.” Dr.

Newton testified that defendant would not have had the ability to distinguish between

right and wrong if he were suffering from postconcussion syndrome.

       On cross-examination, Dr. Newton testified that the day she interviewed

defendant his “mood and affect appeared to be depressed,” that he had an “[a]verage

intellect,” and that he was oriented to time, person, and place. Dr. Newton testified that

“[i]f defendant had been suffering from posttraumatic stress disorder alone that may or

may not have an effect [on sanity].” Dr. Newton testified that defendant “was suffering

from postconcussion syndrome in addition to posttraumatic stress disorder.” Dr. Newton

testified that persons suffering with postconcussion syndrome “would not be able to have

a conscious state to help them discern what is going on.” She testified that “data supports

that postconcussion syndrome people have difficulty with judgment, that’s a classic

symptom, they have difficulty with spatial arrangements, they have difficulty with

making association. That’s documented in the literature.” Dr. Newton testified that

defendant “had a sensitive area in his head” and when Naomi struck him on the evening

of October 17, 2003, he suffered hypoxia, which is a decreased flow of oxygen to the

brain that “could have an effect on his ability to understand everything and make rational

judgments because the data and the literature does support that judgment, that abstract

thinking, that associations in terms of spacial adjustments, in terms of reasoning and

rational behavior is effected by *** postconcussion syndrome.”



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No. 1-07-3362

       Dr. Newton testified that the intensity of the head trauma caused by Naomi

striking defendant was unimportant because the trauma leading to hypoxia “doesn’t have

to be a major hit”; rather, the trauma could be “anything that disrupts cerebral spinal

fluid. You can see it on whiplash injury without anybody being hit at all and still get

post-concussion syndrome.” Dr. Newton testified that the stress of the confrontation

with Naomi exacerbated defendant’s postconcussion syndrome.

       Dr. Newton also testified that defendant knew that stabbing someone was wrong

when he carried two knives to Naomi’s home and that he knew the difference between

right and wrong when Naomi hit him. Dr. Newton testified that defendant reported

remembering being struck and remembered pulling out a knife. Defendant reported that

the next thing he remembered was someone screaming. Dr. Newton testified that

defendant did not remember stabbing Naomi because of the “hypoxia that he’s

experienced.” Dr. Newton testified that defendant came to consciousness “when

someone screamed” and that “he did not have a memory of what was going on until

someone screamed and he looked and saw the blood and then he ran.” Further, Dr.

Newton testified that defendant’s action of discarding the murder weapon in a sewer did

not necessarily mean that he knew his actions were wrong at that point in time.

       Dr. Newton testified that defendant had related to her that he could not recall the

medications he was taking. Dr. Newton recalled that defendant had told her that he “did

not fight [Naomi]” and that “she was just swinging at him.” Dr. Newton stated that “it

occurred” to her that defendant may not have been honest with her during the interview.

Dr. Newton also testified that she did not have the medical examiner’s report when she

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No. 1-07-3362

made her diagnosis and that she wrote her report a year and five months after her

interview with defendant. Dr. Newton then stated that postconcussion syndrome was not

included as a mental illness by the Diagnostic and Statistical Manual of Mental Disorders

(DSM-IV). Dr. Newton then testified that she was part of a committee for the DSM-IV

for the American Psychiatric Association “[a]nd I do know that it is a composite and a

compromised document. It is what we have as a guideline, but it is not the be-all to end

all” because the “DSM-IV is limited in terms of its diagnostic abilities in the clinical

area.” Dr. Newton then testified that her understanding of “insanity” was “that at the

time that a person is – is not aware of – they’re suffering from a disease or defect that

makes them not able to conform to the law.”

       After Dr. Newton’s testimony, the defense rested. The trial court admonished

defendant regarding his right to testify. The trial court asked defendant whether he

understood that he had a right to testify and defendant responded that he did know that he

had such a right. The trial court then asked defendant whether he had discussed the

possibility of him testifying with his attorney. After defendant responded that he had not

discussed the matter with his attorney, the trial court again asked whether he knew he had

a right to testify and defendant indicated that he did. Defendant then stated that it was his

decision not to testify, that he had not been threatened, forced, or promised anything in

exchange for not testifying, and that he desired to rest his case-in-chief.

       In rebuttal, the State called Dr. Fidel Echevarria, a forensic psychiatrist of the

Cook County Department of Forensic Clinical Services, who performed the court ordered

pretrial BCX evaluation of defendant. Dr. Echevarria testified that he evaluated

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No. 1-07-3362

defendant on June 18, 2004, and at that time, defendant appeared “what I consider

normal. He responded to my requests to identify himself when I called out his name. He

followed me and followed instructions into the interview room and he appeared

orientated in terms of time and space.” Dr. Echevarria testified that defendant was in

custody at the time of the interview. Dr. Echevarria testified that defendant’s medical

record from Cermak revealed that defendant was medicating with “three psychotropic

medications including an anti-depressant medication known as [E]ffexor ***, 75

milligrams per day, a mood stabilizing medication known as [D]epakote ***, 750

milligrams twice per day, and an anti-psychotic medication known as [G]eodon [sic] ***,

80 milligrams twice per day.” Dr. Echevarria testified that defendant’s medical records

revealed “self-reports of auditory hallucinations” where defendant reported hearing

Naomi speaking to him after her death. Dr. Echevarria testified that defendant did not

report any auditory or visual hallucinations during his evaluation.

       Dr. Echevarria testified that defendant’s thought process “was goal directed,

linear, coherent, logical.” Dr. Echevarria testified that goal-directed behavior was

“purposeful behavior; that is there is presumably a rational motive for what a person

does.” Dr. Echevarria testified that he did not detect any symptoms that were consistent

with an untreated anxiety mood disorder or a psychotic illness. Dr. Echevarria testified

that defendant was able to report his life history, that his long- and short-term memory

were intact, that his immediate recall was intact, and that his insight and judgment were

“grossly intact.”



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No. 1-07-3362

       Dr. Echevarria testified that a person is legally insane under Illinois law “if at the

time of [the] conduct as a result of a mental defect or mental disease they lack the

substantial capacity to appreciate the criminality of their alleged behavior.” Dr.

Echevarria testified that based on his review of defendant’s medical records, the police

reports, and his interview of defendant, his opinion, to a reasonable degree of psychiatric

certainty, was that defendant was sane at the time of the offense because “defendant’s

report to me of his behavior prior to the incident and following the incident, all the

behaviors he reported, his recollection of events as they were all rational and goal

directed without any evidence of any psychotic processing at that time.”

       Dr. Echevarria testified that there was a rational motive for defendant’s actions,

which was his anger over Naomi ending their relationship. Dr. Echevarria also testified

that defendant’s actions of fleeing and discarding the murder weapon “indicate[d] that

there [was] an understanding that – as to the trouble he can get himself in if he is found

with a weapon, a murder weapon in hand and his attempts to hide and cover his own

involvement.” Dr. Echevarria further opined that all of the foregoing factors led him to

the conclusion that defendant knew his actions were criminal.

       Dr. Echevarria testified that he requested Dr. Erick Nue, a clinical psychologist,

also of the Cook County Department of Forensic Clinical Services, to conduct certain

diagnostic examinations of defendant to determine his Wechsler Adult Intelligence Scale

(IQ Score) and to conduct an independent assessment of sanity and whether defendant

had the ability to understand his Miranda rights. Dr. Nue’s opinion was that defendant

was legally sane at the time of the occurrence. Dr. Nue determined that defendant’s IQ

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No. 1-07-3362

score was 76, which meant that defendant operated at a lower level of intelligence than

people his age, but defendant’s IQ was above the level of mental retardation.

       Dr. Echevarria then testified that he had reviewed Dr. Newton’s report and

disagreed that defendant was suffering from posttraumatic stress disorder because of

“what the defendant did not report to me. In order to make a diagnosis of posttraumatic

stress disorder there [are certain] symptoms that have to – at least some of them have to

be present. And from his self-reports and from what I could elicit there was nothing to

support that diagnosis.” Additionally, Dr. Echevarria testified that he had “never heard”

of a mental illness known as “postconcussion syndrome” and that such an illness was not

listed by the DSM-IV.

       Dr. Echevarria testified that defendant’s recollection of the crime while “spotty”

was adequate because defendant could recall arguing and fighting with Naomi, hearing

Naomi’s mother calling for her, and hearing a noise that caused him to flee. Dr.

Echevarria diagnosed defendant with “situational depression,” which occurs when “a

person becomes depressed in response to something. It could be *** some stressor or

some act. Usually situational depressions are not clinical depressions in the sense that

they do not sustain passed a two-week period. The intensity of their symptoms may not

be the same as a symptom of a major depressive disorder.” Dr. Echevarria testified that

defendant’s depression would not affect his sanity.

       On cross-examination, Dr. Echevarria testified that simply because defendant was

prescribed psychotropic medications did not necessarily mean that defendant was unable

to think rationally. Further, the doctor testified that the DSM-IV is “as absolute [as the

                                             17
No. 1-07-3362

field of psychiatry] gets.” The doctor testified that a cranial computed tomography (CT)

scan would not measure electrical disturbances in a patient’s brain and he testified that he

did not order a magnetic resonance imaging (MRI) or a positron emission tomography

(PET) scan because in his medical opinion, such tests were unnecessary to reaching a

conclusion regarding defendant’s sanity.

        On redirect examination, Dr. Echevarria testified that Dr. Newton found

defendant to have sufficient intellectual functioning and that there was nothing to suggest

that defendant suffered from psychosis. Dr. Echevarria testified that even if defendant’s

auditory hallucinations were true that would not be indicative of psychosis because

“[t]here could be other reasons why a person would have that experience, including guilt

or reports of *** wanting to come across as mentally ill.” On recross-examination, Dr.

Echevarria denied that an awake EEG did not measure electrical activity in the brain

because he stated that the diagnostic examination’s sole purpose was to test electrical

activity in the brain.

        The State then rested its rebuttal case. Defendant requested and was granted

leave to present a surrebuttal. Dr. Newton was again called to the witness stand. She

testified that the DSM-IV was not the “ultimate” means of classifying illnesses because

there “was some debate on whether the DSM-IV [was] a compromised document.” Dr.

Newton testified that there were two schools of though on the DSM-IV. One school

believe that the manual was “too rigid because it does not take into account those varying

aspects within the clinical practice of psychiatry.” Dr. Newton testified that many

insurance companies now utilized the International Classification of Disease (ICD-9-

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No. 1-07-3362

CM) rather than the DSM-IV. Dr. Newton however conceded that the DSM-IV was

“used most frequently and most and frequently referred to *** set standards for treatment

within the psychiatric community.” Dr. Newton then testified that there were portions of

her diagnosis that “concur” with the DSM-IV and that there were portions of her

diagnosis that were “more likely related to neurological disorders as opposed to

psychiatric disorders in and of themselves”; thus, she explained that those portions of her

diagnosis would not appear in the DSM-IV. Dr. Newton also testified that an EEG did

not detect all electrical disturbances in the human brain and that an “awake EEG” is used

“primarily to determine whether someone has a major disorder or not or epileptic

disorder or not.” Dr. Newton testified that the only way to rule out an electrical

dysfunction would be to perform an “[a]sleep EEG with nasal pharyngeal leads.”

       On cross-examination, Dr. Newton testified that the EEG that was performed on

defendant was performed by her order, but she testified that an “asleep EEG” was never

conducted although she had requested such a test. However, Dr. Newton testified that

she did not need an “asleep EEG” to reach her conclusion that defendant was insane at

the time of the stabbing because the “EEG was to determine whether or not he had

epilepsy or whether or not he had an irritable fossae in the brain as a result of that.”

                               E. The Trial Court’s Findings

       Subsequent to closing arguments, the trial court found defendant sane at the time

of Naomi’s death and found defendant guilty but mentally ill of first-degree murder. The

trial court noted that the State and defendant presented expert testimony regarding

defendant’s sanity “[a]nd the two experts have a disagreement on the ultimate conclusion

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as to whether or not [defendant] was insane at the time” of the offense. The court found

that Dr. Newton “found post-traumatic disorder, episodic psychiatric features to the

major depression, postconcussion syndrome as being what I would interpret as serious

mental diseases rather than mental defects.” The trial court then found that Dr.

Echevarria “did not find any evidence to support a diagnosis of post-traumatic stress

disorder using the standards that have been put forth in the DSM-IV,” which “is certainly

one of the most significant standard evaluating tools used in the psychiatric and

psychological profession[s].” The court found that Dr. Newton was impeached because

“[t]he credibility of the doctor is certainly subject to question when she has not used the

correct legal standard in her – certainly in her report, acknowledging in her testimony as

to what the definition of insanity is in Illinois.” The court also found that it “was telling”

that postconcussion syndrome was not recognized in the DSM-IV. The court also found

that Dr. Newton’s conclusion that Naomi’s scratching of defendant’s face triggered

hypoxia was not likely. From the defendant’s videotaped statement hours after Naomi’s

death, the court found defendant’s scratches “superficial” and not of such a nature that

would “trigger some type of complete alteration in one’s brain function subject to all of a

sudden rendering them insane for any behavior that then took place.” Further, the court

found that Naomi’s reaction to defendant’s suicide threat caused him to become “very

angry,” which led “to this violent outburst where he repeatedly stabbed and killed

[Naomi].” As noted the trial court sentenced defendant to 30 years in the Illinois

Department of Corrections. This appeal followed.

                                       II. ANALYSIS

                                              20
No. 1-07-3362

       On appeal, defendant first argues that the trial court’s finding that defendant was

not insane at the time of Naomi’s slaying and was against the manifest weight of the

evidence.

       Section 6-2 of the Illinois Criminal Code of 1961 (Code) provides:

               “(a) 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.”

       720 ILCS 5/6-2(a) (West 2004).

       All defendants are presumed sane and a defendant must prove by clear and

convincing evidence that he was not guilty by reason of insanity. 720 ILCS 5/6-2(e)

(West 2004). When a defendant raises the affirmative defense of insanity, the State is not

required to prove beyond a reasonable doubt that defendant was not insane at the time of

the offense. 720 ILCS 5/6-2(e) (West 2004). Rather, defendant bears the burden of

proof, and “the existence of ‘mental illness,’ as defined in section 6-2 [of the Code], is a

question of fact.” People v. Urdiales, 225 Ill. 2d 354, 428 (2007). The trial court’s

sanity determination will not be overturned unless it is contrary to the manifest weight of

the evidence. Urdiales, 225 Ill. 2d at 427. Moreover, because the trier of fact determines

the weight to be given to testimony, witness credibility and the reasonable inferences to

be drawn from the testimony, and resolves any inconsistencies or conflicts in the

evidence, a reviewing court will not substitute its judgment for that of the trier of fact.

People v. Sutherland, 223 Ill. 2d 187, 242 (2006).



                                              21
No. 1-07-3362

       A defendant who fails to meet his burden in establishing his legal insanity at the

time of the commission of a criminal offense may be found guilty but mentally ill if the

defendant was suffering from a mental illness at the time of the offense. 720 ILCS 5/6-

2(c) (West 2004). However, a defendant found guilty but mentally ill is not absolved of

criminal responsibility, and a court may sentence defendant to any sentence that may

have been imposed upon a defendant convicted of the same offense without a finding of

mental illness. 720 ILCS 5/6-2(c) (West 2004); People v. Johnson, 146 Ill. 2d 109, 131-

32 (1991). A defendant found guilty but mentally ill “is no less guilty than one who is

[found] guilty and not mentally ill.” People v. Crews, 122 Ill. 2d 266, 278 (1998). The

only difference that exists between the two verdicts is that upon a finding of guilty but

mentally ill, the Illinois Department of Corrections must “cause periodic inquiry and

examination to be made concerning the nature, extent, continuance, and treatment of the

defendant’s mental illness.” 730 ILCS 5/5-2-6(b) (West 2004); People v. Lantz, 186 Ill.

2d 243, 253 (1999). Additionally, the Illinois Department of Corrections must provide

“such psychiatric, psychological, or other counseling and treatment for the defendant as it

determines necessary.” 730 ILCS 5/5-2-6(b) (West 2004).

       In the case at bar, the parties presented respective expert testimony regarding

defendant’s sanity. As noted, Dr. Newton was called by the defense and testified that

defendant was insane at the time of Naomi’s slaying and Dr. Echevarria was called by the

State to rebut defendant’s insanity defense.

       As noted, Dr. Newton diagnosed defendant with posttraumatic stress disorder and

post-concussion syndrome. Dr. Newton found that defendant was legally insane at the

                                               22
No. 1-07-3362

time of Naomi’s slaying and opined that defendant would not have been able to

understand the seriousness of his actions and that he would not have been able to

comport his conduct to the law. Dr. Echevarria testified that his psychiatric opinion was

that defendant was legally sane at the time of the offense and that there was no evidence

to support Dr. Newton’s diagnosis of posttraumatic stress disorder. Further, Dr.

Echevarria testified that he “never heard” of postconcussion syndrome and that such an

illness was not recognized by the DSM-IV.

       As the central issue at trial was the conflicting expert testimony, it was in the

unique province of the trial court, as the trier of fact, to determine which expert it would

regard as more credible and worthy of belief. People v. Roper, 116 Ill. App. 3d 821, 824

(1983). Further, because the weight given to an expert’s opinion is measured by the

stated reasons and the factual details supporting the conclusion, the trial court was “free

to accept one expert’s testimony over another’s” and decide the “weight to accord the

experts’ respective testimony.” People v. Cundiff, 322 Ill. App. 3d 426, 433 (2001).

       As noted, in finding the defendant sane at the time of Naomi’s death, the trial

court noted that the State and defendant presented expert testimony regarding defendant’s

sanity “[a]nd the two experts have a disagreement on the ultimate conclusion as to

whether or not [defendant] was insane at the time” of the offense. The court found that

Dr. Newton “found post-traumatic disorder, episodic psychiatric features to the major

depression, post-concussion syndrome as being what I would interpret as serious mental

diseases rather than mental defects.” The trial court then found that Dr. Echevarria “did

not find any evidence to support a diagnosis of post-traumatic stress disorder using the

                                             23
No. 1-07-3362

standards that have been put forth in the DSM-IV,” which “is certainly one of the most

significant standard evaluating tools used in the psychiatric and psychological

profession[s].” The court found that Dr. Newton was impeached because “[t]he

credibility of the doctor is certainly subject to question when she has not used the correct

legal standard in her – certainly in her report, acknowledging in her testimony as to what

the definition of insanity is in Illinois.” The court also found that it “was telling” that

postconcussion syndrome was not recognized in the DSM-IV. The court also found that

Dr. Newton’s conclusion that Naomi’s act of scratching defendant’s face triggered

hypoxia in defendant was not likely. From the defendant’s videotaped statement hours

after Naomi’s death, the court found defendant’s scratches “superficial” and not of such a

nature that would “trigger some type of complete alteration in one’s brain function

subject to all of a sudden rendering them insane for any behavior that then took place.”

Further, the court found that Naomi’s reaction to defendant’s suicide threat caused him to

become “very angry,” which led “to this violent outburst where he repeatedly stabbed

and killed [Naomi].” Based upon the trial court’s determination that Dr. Echevarria’s

testimony was more credible than the testimony of Dr. Newton, this court cannot say that

the trial court’s finding that defendant was sane at the time of Naomi’s death was against

the manifest weight of the evidence.

       Furthermore, other evidence at trial, not specifically noted in the trial court’s

ruling, supports the finding that defendant was sane at the time of the offense. Defendant

possessed the mental faculties to transport two steak knives in his backpack when

traveling to Naomi’s home to speak with her on October 17, 2003. He possessed the

                                              24
No. 1-07-3362

mental faculties to flee when Naomi’s mother opened the door of her home and found

defendant standing over her daughter. He possessed the mental faculties to discard of the

murder weapon, which was never recovered.

       Despite the foregoing, defendant argues that the trial court erred by discounting

Dr. Newton’s testimony. Defendant argues that the trial court wrongfully discounted Dr.

Newton’s testimony because she did not “parrot” the statutory language defining

“insanity” found in section 6-2 of the Code. 720 ILCS 5/6-2(a) (West 2004). In support

of his argument for reversal defendant cites People v. Dwight, 368 Ill. App. 3d 873

(2006), where this court stated:

               “We find no authority to support the proposition that a defense

       witness has to say the defendant, due to mental illness or disease, lacked

       the substantial capacity to appreciate the criminality of his conduct when

       he committed the offense.” Dwight, 368 Ill. App. 3d at 880.

The issue in Dwight was whether a defendant was entitled to a jury instruction regarding

“insanity” based on a combination of lay and expert testimony. The trial court in Dwight

rejected the defendant’s request for the “insanity” instruction. On appeal, the State

argued that the defendant failed to meet his burden to support an “insanity” instruction

because no witness at trial testified that “at the time of the offense defendant lacked [the]

substantial capacity to appreciate the criminality of his conduct.” Dwight, 368 Ill. App.

3d at 880. In reversing, this court held that a defendant is entitled to a jury instruction

regarding “insanity” if the evidence at trial warrants the instruction despite the fact that

no witness at trial used the statutory language regarding insanity. Dwight, 368 Ill. App.

                                              25
No. 1-07-3362

3d at 880. The case at bar, does not involve the question of whether defendant was

entitled to a jury instruction. Rather, it involves whether the trial court’s finding that

defendant was not insane at the time of the criminal conduct was against the manifest

weight of the evidence. The trial court in the case at bar was aware of the Illinois

definition of “insanity,” weighed the respective expert testimony, and found that

defendant was not insane at the time of the instant offense. As we have already noted,

this court cannot say that the trial court’s finding with regard to defendant’s sanity at the

time of the offense was against the manifest weight of the evidence.

         Defendant then contends that he is entitled to a new trial because he received

ineffective assistance of counsel. Specifically, defendant argues that his trial counsel was

ineffective because counsel failed to file a timely motion to suppress his postarrest

inculpatory statements, failed to consult with defendant in advance of trial regarding

defendant’s right to testify, and proceeded to trial without the benefit of an asleep EEG,

which was necessary for a proper presentation of Dr. Newton’s testimony. Finally,

defendant contends that the cumulative effects of trial counsel’s errors deprived him of a

fair trial.

         We begin by reiterating the oft-cited principles related to a defendant’s claim of

ineffective assistance of counsel. “To prevail on a claim of ineffective assistance of

counsel, a defendant must show that his attorney committed such serious errors as to fall

beyond an objective standard of reasonableness, and that, without those objectively

unreasonable errors, there was a reasonable probability that his trial would have resulted

differently.” This is a two-prong test. People v. Ward, 371 Ill. App. 3d 382, 434 (2007),

                                              26
No. 1-07-3362

citing Strickland v. Washington, 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 693-98, 104 S.

Ct. 2052, 2064-68 (1984); People v. Albanese, 104 Ill. 2d 504, 526 (1984). “In

Strickland, the United States Supreme Court delineated the two-prong test to use when

evaluating whether a defendant was denied the effective assistance of counsel in

violation of the sixth amendment.” (Emphasis added.) People v. Bell, 373 Ill. App. 3d

811, 821 (2007). “Under Strickland, a defendant must demonstrate that counsel’s

performance was deficient and that such deficient performance substantially prejudiced

defendant.” Bell, 373 Ill. App. 3d at 821, citing Strickland, 466 U.S. at 687, 80 L. Ed. 2d

at 693, 104 S. Ct. at 2064. Our Illinois Supreme Court has stated that to demonstrate

performance deficiency, a defendant must establish that counsel’s performance was

below an objective standard of reasonableness. People v. Edwards, 195 Ill. 2d 142, 163

(2001). In evaluating sufficient prejudice, “[t]he defendant must show that there is a

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

proceeding[s] would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 80 L.

Ed. 2d at 698, 104 S. Ct. at 2068.

       As noted, defendant’s first contention under Strickland is that defense counsel

was ineffective for failing to file a motion to suppress his postarrest inculpatory

statements prior to trial. In order to prevail on his claims, defendant bears the burden of

showing that the motion to suppress would have probably been granted if made prior to

trial (People v. Bennett, 222 Ill. App. 3d 188, 201 (1991)) and that the trial outcome

would have been different if the evidence had been suppressed (Bennett, 222 Ill. App. 3d

                                             27
No. 1-07-3362

at 203). Moreover, defense counsel is not required to present losing motions in order to

provide effective legal assistance. People v. McCarthy, 213 Ill. App. 3d 873, 886 (1991).

         We first address the issue regarding the timing of the motion to suppress

defendant’s inculpatory statements made subsequent to his arrest. Section 114-11 of the

Illinois Code of Criminal Procedure of 1963, entitled “Motion to Suppress Confession,”

provides:

                “(a) Prior to the trial of any criminal case a defendant may move to

         suppress as evidence any confession given by him on the ground that it

         was not voluntary.

                (b) The motion shall be in writing and state facts showing wherein

         the confession is involuntary.

                (c) If the allegations of the motion state facts which, if true, show

         that the confession was not voluntarily made the court shall conduct a

         hearing into the merits of the motion.

                                             ***

                (g) The motion shall be made before trial unless opportunity

         therefor did not exist or the defendant was not aware of the grounds for

         the motion.” 725 ILCS 5/114-11(a), (b), (c), (g) (West 2004).

This statute clearly sets forth that the appropriate time for filing motions to suppress is

prior to trial, unless the circumstances indicate that the subsection (g) exception should

apply.



                                              28
No. 1-07-3362

        As noted, defense counsel, for the first time, sought leave to file a motion to

suppress defendant’s inculpatory statements on the first day of trial. Defense counsel

stated that filing the motion was a matter of “housekeeping.” After a short recess, the

defense answered ready for trial, and no motion to suppress defendant’s postarrest

statements was filed. Per the foregoing, it is clear that if the defense were to file a

motion to suppress defendant’s postarrest statements, that motion should have been filed

in advance of trial.

        However, our analysis pertaining to defendant’s ineffective assistance claim does

not end here. As noted, defendant must still demonstrate that the motion to suppress

probably would have been granted if made (People v. Bennett, 222 Ill. App. 3d 188, 201

(1991)) and that the trial outcome would have been different if the evidence had been

suppressed (Bennett, 222 Ill. App. 3d at 203). We now proceed to those considerations.

        Defendant argues that his trial counsel should have filed a motion to suppress his

post-arrest statements because it is unclear from the record of the case at bar that

defendant had the mental capabilities to understand his Miranda rights.

        The State initially argues that defendant suffered no prejudice by defense

counsel’s decision not to file a motion to suppress because his identity as Naomi’s killer

was never in doubt; as defendant asserted the affirmative defense of insanity, he admitted

that he committed the acts charged. We reject the categorical assertion offered by the

State. It is clear under Illinois law that a defendant may both, as defendant did here,

assert the affirmative defense of insanity and deny that he committed the acts charged by



                                              29
No. 1-07-3362

pleading not guilty and simultaneously asserting the insanity defense. See People v.

Ford, 39 Ill. 2d 318 (1968), and People v. Moore, 147 Ill. App. 3d 881, 885 (1986).

       However, we do agree with the State’s contention that even had the motion to

suppress defendant’s post-arrest statement been filed, it would not have probably been

granted. As noted, prior to trial, the court ordered a BCX to determine defendant’s

fitness to stand trial, defendant’s ability to understand Miranda, and defendant’s sanity.

The results of the BCX were that defendant was fit to stand trial, did possess the mental

capabilities to understand Miranda, and was sane at the time of the administration of the

BCX. Per the results of the BCX, which determined that defendant possessed the

capabilities to understand Miranda, we find that the motion to suppress defendant’s

postarrest statements would not have probably been granted had the motion to suppress

been made.

       We also note that defendant consented to have his postarrest statements

memorialized on videotape. As noted, the videotape was played in open court, but is not

included in the record of this case. It is well settled that it is defendant’s burden to

prepare a complete record for appellate review. Midstate Siding & Window Co. v.

Rogers, 204 Ill. 2d 314, 319 (2003). We can only presume that defendant was given and

acknowledged his Miranda warnings before providing his videotaped statement. If there

was evidence contained in the videotape that defendant was unable to understand his

Miranda warnings, it is not before this court. Any doubts arising from the

incompleteness of the record must be construed against defendant. Rogers, 204 Ill. 2d at

319.

                                              30
No. 1-07-3362

       Defendant then argues that he was denied the effective assistance of counsel

because he was never given the opportunity to discuss the advantages and disadvantages

of testifying on his own behalf with his trial counsel. As noted, after Dr. Newton’s

testimony, the defense rested its case-in-chief. The trial court admonished defendant

regarding his right to testify. The trial court asked defendant whether he understood that

he had a right to testify and defendant responded that he did know that he had such a

right. The trial court then asked defendant whether he had discussed the possibility of

him testifying with his attorney. After defendant responded that he had not discussed the

matter with his attorney, the trial court again asked whether he knew he had a right to

testify and defendant indicated that he did. Defendant then stated that it was his decision

not to testify, that he had not been threatened, forced, or promised anything in exchange

for not testifying, and that he desired to rest his case-in-chief. The record conclusively

establishes that defendant’s decision not to testify was informed, rational, and voluntary.

People v. Davis, 373 Ill. App. 3d 351, 361 (2007). Furthermore, defendant offers no

support from the record that the outcome of his trial would have differed had his attorney

discussed testifying with him. As such, defendant cannot establish that he suffered any

prejudice from counsel’s failure, and his claim fails under the second Strickland prong.

       Defendant then argues that he was denied the effective assistance of counsel

because trial counsel proceeded to trial without the benefit of an asleep EEG, which was

necessary for Dr. Newton’s opinion that defendant was insane at the time of the instant

offense. We find that this argument also fails under the second Strickland prong because

defendant can demonstrate no prejudice as a result of defense counsel’s decision to

                                             31
No. 1-07-3362

proceed to trial without the benefit of an asleep EEG. The absence of the asleep EEG did

not hinder defendant’s presentation of Dr. Newton’s testimony, because Dr. Newton

testified that an asleep EEG was unnecessary to her opinion that defendant was insane at

the time of the instant offense. Thus, even had the asleep EEG been performed, it would

not have altered Dr. Newton’s opinion.

        Defendant then maintains that the cumulative effect of all of defense counsel’s

alleged errors deprived him of a fair trial. We find this argument unpersuasive. “The

whole can be no greater than the sum of its parts” and defendant has failed to

demonstrate anything warranting reversible error in the myriad of arguments offered to

justify reversal for ineffective assistance of counsel. People v. Albanese, 102 Ill. 2d 54,

82-83 (1984). While it is true that trial errors may have a cumulative effect when

considered together (People v. Killian, 42 Ill. App. 3d 596, 601 (1976)), defendant has

failed to establish this in this case.

                                         III. CONCLUSION

        For the foregoing reasons, we affirm the judgment of the circuit court of Cook

County.

        Affirmed.

        WOLFSON and GARCIA, JJ., concur.




                                               32
                REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
                          (Front Sheet to be attached to each Opinion)
Please use the ]
following form:      ]
                  ]
                  ]      THE PEOPLE OF THE STATE OF ILLINOIS,
                  ]
                  ]                            Plaintiff-Appellee,
                  ]             v.
                  ]
                  ]      PIERRE HOUSEWORTH,
                  ]
                  ]                            Defendant-Appellant.
                  ]
Complete             ]
  TITLE              ]
of Case.             ]
Docket No.           ]                    No. 1-07-3362
                     ]              Appellate Court of Illinois
COURT                ]              First District, First Division
                     ]
                     ]               DECEMBER 22, 2008
Opinion Filed        ]              (Month, Day and Year)
JUSTICES            ] PRESIDING JUSTICE ROBERT E. GORDON delivered the
                     ]opinion of the court.
                     ]
                     ] WOLFSON and GARCIA, JJ., concur.
                     ]
APPEAL from the ] Lower Court and Trial Judge(s) in form indicated
Circuit Court ] in margin:
of Cook County;      ] Appeal from the Circuit Court of Cook County.
the Hon:______       ]
Judge Presiding      ] Honorable James M. Obbish, Judge Presiding.
For APPELLANTS ]Indicate if attorney represents APPELLANTS or
John Doe of          ]APPELLEES and include attorneys of counsel.
Chicago.             ]Indicate the word NONE if not represented.
For APPELLEES, ]----------------------------------------------------------------------------------------------
-
Smith and            ]      Allan A. Ackerman, Esq.
Smith, of            ]      Chicago, Illinois 60614
Chicago.             ]      Attorneys for Appellant
Brown,               ]      Attn: John C. Derscheid - Second Year Law Student, Chicago-Kent
of Counsel.          ]      College of Law, Chicago, Illinois 60601
                     ]      Assisted in the preparation of this opening brief.
Also add atty.]
for third party      ]      Anita Alvarez - State’s Attorney, County of Cook
appellants           ]      Chicago, Illinois 60602
or appellees.        ]      Attorneys for Appellee
                     ]      Attn: James E. Fitzgerald, Manny Magence and Omar Jaleel
                     ]             OF COUNSEL
                     ]
_________________(USE REVERSE SIDE IF NEEDED_________________________________
