                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




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




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    ROBERT WEEKS, Defendant-Appellant.



District & No.             First District, Second Division
                           Docket No. 1-10-0395


Filed                      September 27, 2011
Rehearing denied           January 25, 2012
Held                       In a prosecution for aggravated criminal sexual assault and attempted
(Note: This syllabus       murder, the jury’s finding that defendant was guilty but mentally ill was
constitutes no part of     affirmed over defendant’s contentions that he should have been found not
the opinion of the court   guilty by reason of insanity or that he should have been granted a new
but has been prepared      trial because of the denial of his motion for a continuance, the
by the Reporter of         ineffectiveness of defense counsel, and the denial of his motion for the
Decisions for the          appointment of a special prosecutor.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 06-CR-22966; the
Review                     Hon. Michael Brown, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Kristine A. Neal, all of the
Appeal                      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 by police 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

                                                  -2-
     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 eventually indicted 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.1 After the public defender withdrew, defendant’s new private counsel
     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.


             1
               The office represented another individual on an unrelated case who had requested DNA
     testing, but the results of that test appeared to exonerate the other individual and implicate defendant
     in the crime.

                                                   -3-
¶ 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 crime was 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.




                                                 -4-
¶ 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.” Insanity is 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)).2 If a defendant proves that he was mentally ill but fails to prove that he could
       not appreciate the criminality of his actions,3 then the jury may return a verdict of guilty but
       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       Regarding the interview environment, the evidence indicated that defendant was shackled
       when Dr. Lourgos interviewed him the first time, although it is unclear whether defendant


               2
               The State retains the burden of proving the elements of the offense beyond a reasonable
       doubt (720 ILCS 5/6-2(e) (West 2010)), but that is not at issue in this appeal.
               3
                It should be noted that although a defendant must prove the elements of the insanity defense
       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)).

                                                   -5-
       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 Memory Malingering (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, there was no evidence in his medical records that
       he suffered from any other objective symptoms that normally accompany these 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 finally points 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,

                                                -6-
       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


                                                 -7-
       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. Under these circumstances, the trial court
       did not abuse its discretion by denying defendant’s request for a continuance.



                                                 -8-
¶ 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 ‘outcome-
       determinative’ test but, rather, may be 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 2½ 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


                                                  -9-
       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


                                                -10-
       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 County State’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, particularly People 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 Attorney was 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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