Opinion
No. 1-11-3667
06-28-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT BRITTON, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 95CR22590
The Honorable Rosemary Grant Higgins, Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Lavin concurred in the judgment.
Justice Epstein specially concurred.
Held: Where defendant presented sufficient evidence at third-stage postconviction
evidentiary hearing to show he was denied the effective assistance of trial counsel,
postconviction court's grant of postconviction relief affirmed.
¶ 1 ORDER
¶ 2 The State appeals from an order of the circuit court granting defendant's petition for relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2010)) following an evidentiary hearing and ordering a new trial. On appeal, the State contends the trial court erred in granting the petition and ordering a new trial. For the following reasons, we affirm. ¶ 3 Brief History ¶ 4 Following a 1996 bench trial, defendant Robert Britton was found guilty of four counts of aggravated criminal sexual assault, with two of the counts merging. The court sentenced defendant to consecutive terms of 20 and 30 years' incarceration. On direct appeal, defendant appealed both his conviction and sentence, arguing that there was insufficient evidence to prove him guilty beyond a reasonable doubt and that his sentence was excessive. People v. Britton, No. 1-96-1700 (1997) (unpublished order under Supreme Court Rule 23). This court affirmed defendant's conviction and sentence. People v. Britton, No. 1-96-1700 (1997) (unpublished order under Supreme Court Rule 23). Defendant then petitioned for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)), alleging, in pertinent part, that he was denied the effective assistance of trial counsel and that his due process rights were violated. The trial court granted the State's motion to dismiss, holding: (1) defendant was culpably negligent for the untimely filing of his petition; (2) his claims were barred by res judicata; and (3) he failed to make a substantial showing that his right to effective assistance of counsel was denied at trial. Defendant appealed the dismissal to this court, alleging that the delay in filing his petition was not due to his culpable negligence and that he was entitled to an evidentiary hearing on his ineffective assistance of counsel and due process claims. People v. Britton, No. 1-03-3531 (2006) (unpublished order under Supreme Court Rule 23). We agreed, finding that defendant was not culpably negligent for the late filing of his petition, that defendant's claims were not barred by res judicata, and that the claims of ineffective assistance of trial counsel merited an evidentiary hearing. People v. Britton, No. 1-03-3531 (2006) (unpublished order under Supreme Court Rule 23). ¶ 5 Following an evidentiary hearing, the postconviction court granted the petition and awarded defendant a new trial. The State appeals, arguing that the postconviction court erred in granting relief where defendant's claim of ineffective assistance of trial counsel lacks merit. For the following reasons, we affirm the order granting postconviction relief.
¶ 6 I. BACKGROUND
¶ 7 On July 14, 1995, A.B., an 18-year old high school senior with cerebral palsy, reported that she had been sexually assaulted by defendant. The charges filed against defendant in this case and his eventual conviction stem from this incident. ¶ 8 Trial ¶ 9 At trial , A.B. testified that she lived with her mother on July 14, 1995, in Chicago. During that time, she utilized the services of SCR Medical Transportation Company (SCR) to get to the hospital where she was in a day program being treated for depression. She identified defendant as the driver of the van for her return trip home from the hospital on July 14. ¶ 10 A.B. testified that, after defendant dropped off the other passengers, he told her she was pretty and asked her if she wanted to go out with him. She declined. She testified that, when they arrived at her home, defendant assaulted her in the back of the van. Initially, she testified this occurred when defendant parked in front of her house, but on cross-examination, she testified that it was when defendant parked in the alley behind her house. She testified that defendant put his penis in her vagina, which hurt her, and that she told him to stop. Defendant then drove the van to the front of her house, handed A.B. her crutches, and walked her to the door. Defendant then followed her inside the house and into her bedroom without her knowledge, and again sexually assaulted her by putting his penis in her vagina. He threatened to kill her if she called the police. ¶ 11 A.B. testified that, after defendant left, she called her grandmother and told her she was raped. She later acknowledged she had actually told her grandmother that defendant had "bothered" her. Her grandmother instructed her to wait for her mother to come home. ¶ 12 A.B. also testified she called the SCR dispatcher and told her that the van driver had raped her. A.B. then called the police. After that, she received a telephone call from defendant, who asked her if anyone was home. When she said she was alone, defendant asked if he could come back. When A.B.'s mother came home later, A.B. again called SCR. She told the dispatcher about defendant's telephone call and threat to kill her. ¶ 13 A.B.'s mother then took A.B. to the hospital where she was examined by a physician. The exam, however, was terminated due to the pain involved. Later that day, A.B. identified defendant in a lineup at the police station. ¶ 14 At trial, A.B. identified a pair of underpants which had a red stain on them as those she was wearing at the time of the assault and which defendant put on her backwards. She denied she had consented to any touching by, or sexual intercourse with, defendant. She did not describe where on the underpants the red stain was located. ¶ 15 During cross-examination, A.B. related that she took the medication Prozac once per day as part of her treatment for depression. She testified that it made her sleepy and sometimes caused her to be agitated and irritable. She denied that it made her forgetful or caused her to hallucinate. ¶ 16 A.B. denied making advances to defendant. She stated she had not had sexual relations with anyone before this incident, but admitted that her grandfather had fondled her in June 1994 and was put on trial for that incident. ¶ 17 As to the incident in question, A.B. initially testified that the first act took place in the van which defendant had parked in front of her house, but then said the van was parked in the alley behind her house. The act caused her to bleed, and when it was over, defendant put her clothes back on. She did not see anyone in the vicinity to complain to either in the alley or in front of her house. She did not know how defendant got her telephone number, but denied having given it to him. ¶ 18 Pamela Rakestraw, the owner of SCR, testified that on July 14, 1995, defendant was employed as a driver at SCR. Her dispatcher, Michelle Lucas, advised her she was unable to reach defendant on the radio at about 5:30 that day. Rakestraw explained it was the driver's duty to maintain contact at all times. Rakestraw opined that, when defendant returned to the SCR base, he appeared nervous and frightened. He told her that A.B. was crazy, confused, and was a liar, and that Rakestraw should expect trouble from her. He also said that A.B. had an affair with an SCR driver and had been sexually assaulted by her grandfather.
"[WITNESS RAKESTRAW] A: [Defendant] came in appearing very, very nervous, even frightened, and he said to me that there is a customer by the name of [A.B.] that is going to cause problems. [Defendant] said that he felt that [A.B.] was crazy, that she's a big liar, and that she had told him that she had had some type of an affair with a driver at SCR, that she was very confused, and that I should just expect there to be some major problems because [A.B.] stated that she had been sexually assaulted by her grandfather and that he felt she was crazy and that I should just watch and see that she was going to cause a problem."¶ 19 While Rakestraw was talking with defendant, A.B. telephoned her and told her one of the drivers had raped her. She also said she had called the police. Defendant then reminded Rakestraw of what he had said about A.B. and suggested that Rakestraw contact another of the passengers in the vehicle. Rakestraw told defendant to wait in the drivers' room, then spoke with the named passenger. After that, Rakestraw received another telephone call from A.B., informing her that defendant had called her and threatened to kill her. She noted that A.B. was crying and sounded frightened. Dispatcher Lucas went out to the garage where she saw defendant using the public telephone. Rakestraw called the police and defendant was subsequently arrested. ¶ 20 Dispatcher Lucas testified she had attempted to radio a message to defendant about 5:00 p.m. that day, but he was off the air for approximately 40 minutes. When he came into the dispatch room, he told her he had been putting gas in the van and using the restroom. Lucas also testified that, while she did not know who defendant was talking with on the telephone in the garage, she was under the impression that defendant was talking to A.B. ¶ 21 Dr. Liza Chorzempa, a third-year resident in obstetrics and gynecology at the University of Chicago Hospital, testified that she completed a partial exam of A.B. following a report of rape. She testified that A.B. was upset, but was able to describe what had happened. Dr. Chorzempa attempted to perform a speculum examination on A.B., but stopped because of the trauma it was causing A.B., who then refused to undergo an examination under anesthesia. ¶ 22 A.B.'s mother, Stephanie, testified that when she returned home about 6:00 p.m. on the day in question, A.B. was standing at the door looking frantic. A.B. told her she had been raped by the bus driver, and said she had called her grandmother, the police, and SCR. Stephanie took A.B. to the hospital for examination, and then took her to the police station. ¶ 23 On cross-examination, defense counsel briefly questioned Stephanie regarding A.B.'s depression. Stephanie related that A.B.'s depression manifested itself in isolation rather than agitation, explaining that A.B. would "stay[] in her bed, and she didn't do much of anything." ¶ 24 The parties then entered into stipulations as to the testing which had been done on the vaginal swabs taken from A.B., a glass vile swab taken from the van, A.B.'s underpants, and a bed sheet. The underpants tested positive for human blood, but negative for semen. All other samples tested negative for the presence of semen or blood. ¶ 25 Both sides rested and arguments were presented by counsel. The trial court found defendant guilty of two forcible acts of penetration causing vaginal trauma to A.B. 720 ILCS 5/12-14 (West 1994). In announcing its decision, the court stated that it had considered the defense impeachment of the victim's testimony, but found on the basis of the totality of the evidence that her account was corroborated by her immediate outcry, the conduct of defendant as described by workplace personnel, the blood evidence, and A.B.'s physical condition at the hospital. ¶ 26 Defendant's sentencing hearing was set for April 23, 1996. Defendant's trial counsel failed to appear at the hearing without immediate explanation. Defendant indicated to the court that he did not feel as if he received adequate representation. The court issued a rule to show cause why defendant's attorney should not be held in contempt for failing to appear. The sentencing hearing was reset for April 25. At the hearing, the trial court heard evidence in aggravation and mitigation, then sentenced defendant to consecutive prison terms of 20 and 30 years. ¶ 27 Direct Appeal ¶ 28 Defendant appealed, challenging the sufficiency of the evidence and the length of his sentence. He argued that the State failed to prove him guilty beyond a reasonable doubt where "A.B.'s testimony was contradictory, lacking in detail, and suspect due to her illness and the medication she was taking." He also argued that "the court allowed [A.B.] too much deference because of her handicap and that the physical evidence does not support her account." People v. Britton, No. 1-96-1700 (1997) (unpublished order under Supreme Court Rule 23). This court affirmed defendant's conviction, noting:
"Complainant testified to her handicapped condition and identified defendant as the driver of the van who forcibly performed two acts of sexual penetration on her causing bodily harm. In announcing its decision, the trial court stated that it had considered the infirmities in her testimony, but found them inconsequential in light of the totality of the evidence which corroborated her account. We cannot say that this determination was unreasonable. People v. Morgan, 142 Ill. 2d 410, 440 (1991).¶ 29 Defendant also challenged his sentence as excessive in light of mitigating evidence presented on his behalf and his potential for rehabilitation. This court affirmed defendant's sentence. People v. Britton, No. 1-96-1700 (1997) (unpublished order under Supreme Court Rule 23). ¶ 30 In 2000, Basile was suspended from the practice of law by the Illinois Supreme Court for two years and until further order of the court. The Illinois Attorney Registration and Disciplinary Committee (ARDC) Hearing Board report indicated that Basile had a substance abuse problem, failed to appear in numerous cases, and was diagnosed with HIV in 1996 and AIDS in 1999.
"Complainant's contradictory statements, cited on appeal by defendant, regarding the location of the initial assault, her uncertainty as to the time frame involved and air temperature inside the van, as well as the lack of detail provided in describing the acts of penetration, were matters affecting the weight of the evidence and her credibility as a witness. See People v. Young, 128 Ill. 2d 1, 51 (1989); People v. Bell, 234 Ill. App. 3d 631, 636 (1992). Contrary to defendant's bald assertion, there is no indication in the record that the trial court gave her testimony undue deference because of her handicap, or that the medication she was taking caused her to be confused or to think abnormally. Rather, the record
shows that complainant testified consistently on the essential elements of the charged offense, and that her account was supported by the corroborated immediate outcries which she made to defendant's workplace, then to her mother, and by the blood evidence and by her physical condition. The inferences to be drawn from defendant's 40 minute absence from radio contact at the critical period, as well as his demeanor at the base and the representations he made concerning A.B. there, also supported the trial court's determination of guilt. People v. Bofman, 283 Ill. App. 3d 546, 553-54 (1996)." People v. Britton, No. 1-96-1700 (1997) (unpublished order under Supreme Court Rule 23).
Much of the information in this section comes from the Rule 23 issued in defendant's direct appeal, People v. Britton, No. 1-96-1700 (1997) (unpublished order under Supreme Court Rule 23).
Specifically, the stipulation, as relevant to this appeal, stated that, if "Crystal Watson were called to testify, she would testify that she is a criminalist two in the forensic biology unit of the Chicago Police Department Crime Lab; that she was submitted exhibits from the evidence technician in the Robert Britton case * * * [including a pair of A.B.'s underpants]" and that those underpants tested negative for the presence of semen and "positive for human blood."
Postconviction Petition
¶ 31 Defendant, represented by private counsel, then filed a petition for postconviction relief in August 2002. In his petition, he alleged, in pertinent part, that he was deprived the effective assistance of counsel because his trial counsel, Anthony Basile, was suffering from serious and extensive medical, personal, and professional difficulties at the time of his representation of defendant. Defendant alleged Basile was ineffective because: (1) at the time of defendant's trial, counsel was suffering from HIV, AIDS related dementia, and syphilis; (2) he had been suspended from the practice of law for two years as of September 22, 2000; (3) he had been held in indirect contempt of court by another judge and had other rules to show cause filed against him; (4) he repeatedly failed to meet with defendant prior to trial, but when they met, trial counsel failed to recall the facts as defendant related them to him; (5) counsel was shaking, sweating, and slurring his speech; (6) counsel failed to contact or interview any witnesses in preparation for trial; (7) counsel failed to subpoena A.B.'s medical records; (8) counsel erred in stipulating to the blood evidence at trial where the report showed that blood was only found on the waistband of A.B.'s underpants; (9) counsel was addicted to crack cocaine at the time he represented defendant; and (10) counsel failed to appear at the original date set for the sentencing hearing. ¶ 32 The postconviction court dismissed the petition without an evidentiary hearing. Defendant appealed. In September 2006, this court reversed and remanded the case for an evidentiary hearing. People v. Britton, No. 1-03-3531 (2006) (unpublished order under Supreme Court Rule 23). The court described defendant's postconviction petition, in part:
"The defendant argued that he was denied effective assistance of trial counsel because his attorney suffered from the HIV virus, dementia caused by the AIDS virus, and syphilis, all of which affected his cognitive functioning. In 2000, his attorney was suspended from the practice of law by the Illinois Supreme Court¶ 33 In remanding for an evidentiary hearing, this court noted that, in People v. Williams, 93 Ill. 2d 309 (1982), "fundamental fairness required it to examine the addition[al] information [concerning matters disclosed in counsel's disciplinary proceedings] to determine whether it had any bearing on the quality of that representation. People v. Britton, No. 1-03-3531 (2006) (unpublished order under Supreme Court Rule 23). The court held:
for two years and until further order of the court. The defendant attached the case People v. Sanchez, 329 Ill. App. 3d 59 (2002) and the report of the Illinois Attorney Registration and Disciplinary Committee hearing board (ARDC) to his petition. In Sanchez, the appellate court held that Sanchez, who was also represented by the defendant's trial attorney, was entitled to an evidentiary hearing concerning his ineffective assistance of counsel claims. The ARDC report indicated that the defendant's attorney had a substance abuse problem, failed to appear in numerous cases, was diagnosed with HIV in 1996 and with AIDS in 1999. A doctor who evaluated the defendant's attorney in 2000 indicated that the attorney's cognitive disabilities affected his ability to practice law." People v. Britton, No. 1-03-3531 (2006) (unpublished order under Supreme Court Rule 23).
"Although the facts in this case are distinguishable from those in Williams-thedefendant was not sentenced to death and the attorney's¶ 34 The State sought leave to appeal to the Illinois Supreme Court, which petition was denied on January 24, 2007. People v. Britton, 222 Ill. 2d 611 (2007). ¶ 35 Evidentiary Hearing ¶ 36 At the evidentiary hearing, defendant called Dr. Mark Thomma to testify as an expert in the field of psychiatry. Dr. Thomma works as an assistant professor of clinical psychiatry at Northwestern University and is on staff at Northwestern University Hospital. Dr. Thomma explained he was asked to determine whether, in his opinion, at the time of trial, if defendant's counsel "had investigated the psychological symptoms, treatment, et cetera, history, would that have shed light perhaps on her ability to recall, remember, state * * *, perceive things relatively accurately." In order to do so, he reviewed 30 pages of A.B.'s treatment records from August 1991 to 2000, as well as the transcript of A.B.'s trial testimony and her deposition testimony taken in 2000. Dr. Thomma explained that the generally accepted practice within the field of forensic psychiatry is to form an opinion about a person's mental state based on a review of that person's psychiatric and medical records. He testified:
disciplinary hearing was not contemporaneous to his trial-we find that the interests of justice require that the defendant be granted an evidentiary hearing based on the severity of the allegations raised in his petition. The attorney's behavior and actions that formed the basis for the disciplinary action occurred both during and after his representation of defendant. The allegations, which for the sake of review we deem as true, suggest that the attorney was suffering, not only from a debilitating drug addiction, but he was also suffering from HIV, AIDS-related dementia, and syphilis, all of which diminished mental functioning. These considerations, along with the allegations raised in the defendant's petition: (1) his attorney failed to adequately investigate the case; (2) during pretrial meetings, the attorney did not recall the facts as defendant had related them; (3) the attorney argued consent even though the defendant repeatedly denied that he had sexual relations with A.B.; (4) before trial, the attorney was shaking, slurring his speech, and seemed to be sweating, even though the area was air-conditioned; (5) during trial, the attorney evidenced difficulty recalling facts and during closing argument, he had to be corrected by the trial court; and (6) the attorney failed to appear at the defendant's sentencing hearing, establish a substantial showing of a constitutional violation." People v. Britton, No. 1-03-3531 (2006) (unpublished order under Supreme Court Rule 23).
"[WITNESS DR. THOMMA] A: What is invaluable is getting observations from what we might call third-party professionals, people who didn't have involvement. There was no legal case going on at that time, you know, at least up to a certain point. And so these records really provide people who had but one purpose inDr. Thomma described what he was asked to do in reviewing this case:
mind, that was to assess [A.B.] and treat her in various settings."
"[WITNESS DR. THOMMA] A: Well, as far as I can tell, I reviewed every psychiatric/psychological record that was possible to obtain. And the first ones started in August of 1991, and the last one went through December of the year 2000. So pieces of the record for almost ten years. And the incident with [defendant] and the accusation was right in the middle of that, in '95."He also explained he reviewed the transcript of A.B's testimony at defendant's trial as well as a transcript from her deposition in a civil trial in the year 2000. He did not interview the now-deceased A.B., her family members, or her former treatment providers. He explained he did not interview her personal psychiatrist because the general practice is that a psychiatrist should not offer expert opinion about a patient he has treated because the goal of a treating psychotherapist is to get the patient to feel and function better, while the goal of a person trying to form an expert opinion to offer to the court is to find out the truth "as well as possible." ¶ 37 From his review, Dr. Thomma determined that A.B. was born prematurely at 5 ½ months gestation in 1977, and weighed 1 ½ pounds. As a newborn, A.B. suffered from a brain bleed. She was soon diagnosed with hydrocephalus and the first in a series of shunts was inserted when she was 40 days old in order to relieve pressure on her brain and to drain excess fluid from her head into her abdomen. She suffered brain damage from the pressure on the brain as well as from the procedures at that time. A.B. also was born with cerebral palsy. ¶ 38 Dr. Thomma also testified A.B. suffered from "either mild retardation or right on the border of mental retardation." She suffered from seizures related to her hydrocephalus. The records indicated that A.B.'s seizures were at times controlled with medication but at other times not, and that she suffered seizures during several periods in her life. A consequence of this was the risk of brain damage due to frequent or prolonged seizures. ¶ 39 Dr. Thomma testified that the seizures and hydrocephalus affected A.B.'s mental functioning in two ways. First, there was a "direct effect on the brain," a physical change in the brain that affect memory, emotion, relation, self-control, and impulsivity. Second, because of her physical disabilities, she was challenged at school and could not keep up with other children, all of which entered into her psychological well-being. ¶ 40 Dr. Thomma also testified that A.B. suffered from psychotic symptoms:
"[WITNESS DR. THOMMA] A: Psychotic symptoms-generally we might call it a shorthand break from reality to some degree. And most typically it presents as either hallucinations, delusions or paranoia; that they are misperceiving.¶ 41 Dr. Thomma testified that, after reviewing A.B.'s records, in his opinion, all of these reported symptoms impacted her perception of reality, memory, her ability to accurately recount events, her ability to understand events that were happening around her, and her ability to interact with others at the time of trial. ¶ 42 Dr. Thomma also testified from his review of A.B.'s records regarding specific instances in which she had struggled. For example, A.B. was assessed at the psychiatric emergency department at the University of Chicago Hospital on August 15, 1991. The symptoms recorded included hallucinations:
And there was particularly one episode where [A.B.] had numerous delusions and hallucinations. She also complained of auditory hallucinations-that is hearing voices-numerous times in the record.
* * *
So psychotic symptoms at times or complaints about
psychotic symptoms, incredible severe depression at times, anger, overreaction at times, a lot of difficulty navigating life, if you would, relationships, either within her family or with others, at times with the people who were treating her. She would be fairly often irritable, but not all the time, you know, an over reactor."
"[WITNESS DR. THOMMA] A: She had been away at camp. She is around 14 years old at this point * * * there were two different descriptions. She believed that she saw a nurse throwing a baby out the window. Another time she told one of the other doctors the nurse was throwing multiple babies out the window at camp; that she was burned in the shower; that somebody had taken all of her clothes and other people were coming in and moving her furniture around. She [] said she saw her mother and father being¶ 43 Dr. Thomma explained the significance of these hallucinations was that A.B. "wasn't able to interpret reality-external reality versus maybe some things that were going on in her brain. . . sort of the nature of delusions, her hallucinations." He said, "[s]ometimes there is a bit of truth in some of these delusions or hallucinations, but they are either exaggerated or distorted or things like that. . . you would have to really wonder about anything she said at that point." ¶ 44 Dr. Thomma opined that these hallucinations could have been caused by increased pressure in A.B.'s brain due to shunt malfunction or could be the result of an emotional reaction. ¶ 45 Approximately two and one-half weeks prior to that emergency room visit, A.B. had been admitted to the emergency room for a weakness or tightness in her legs, and there was no referral for a shunt revision at that point. In his opinion, the psychiatric symptoms that A.B. experienced could not solely be explained by a shunt malfunction, but would most likely be a combination of both emotional and possibly some physical effects. Two months later, A.B. had a shunt revision surgery performed. ¶ 46 Dr. Thomma testified that, twelve days before the incident involving defendant, on July 2, 1995, A.B. was assessed at the psychiatric emergency department of the University of Chicago Hospital, and then referred to Michael Reese Hospital. According to records, A.B. was brought to the hospital by her mother and her own psychologist due to "increasing psychiatric problems since Monday." She had been "very agitated, suicidal" and the psychologist felt she "would or could hurt herself if allowed to return home." At that time, A.B. was also having auditory hallucinations, specifically hearing one voice saying derogatory things about her. Dr. Thomma opined this was significant because it evidenced severe depression. At that time, A.B. was admitted into inpatient treatment for her symptoms, which Dr. Thomma characterized as "very significant." ¶ 47 A.B. was then sent to Michael Reese Hospital for inpatient treatment, and discharged on July 8, 1995. Her discharge summary indicated that A.B.'s "superficial judgment and insight seem to be intact, although her general information was poor. Her calculating ability was poor, and she abstracted in rudimentary fashion. Her memory functions were poor." Her discharging psychiatrist also indicated A.B. had "reaction inflammation," which Dr. Thomma defined as overreacting. Regarding the overreacting, Dr. Thomma explained:
flown into the camp to bring her clothes and then flown out, which the parents said that was totally untrue."
"[WITNESS DR. THOMMA] A: [] Certain personality disorder persons [overreact] frequently, and it is intense and kind of out of the blue. So if they are slighted or they feel slighted or forgotten or abandoned or neglected, sometimes they get enraged."The records reflected that A.B. had a number of personality disorders, including "very significant" borderline personality disorder. Although A.B. was discharged on July 8, 1995, she still required intensive outpatient treatment. ¶ 48 Dr. Thomma opined that A.B.'s depressive and suicidal symptoms, along with her hallucinations reflected in her hospital visit just 12 days prior to the incident involving defendant raised questions about her ability to perceive reality with reasonable accuracy. ¶ 49 Five months after she was discharged, and 4 ½ months after the incident with defendant, A.B. was assessed at Michael Reed Mental Health Center as well as at Community Counseling Centers of Chicago, complaining of auditory hallucinations, agitation, and suicidal thinking. At that time, according to records, A.B. reported she first started hearing voices five years previous, or in 1990 or 1991. Dr. Thomma testified that it was difficult to discern whether A.B. was actually hearing voices, or "distorting or exaggerating" in saying she was hearing voices in order to be admitted to the hospital from anger or fear. Either way, he testified, "it is a major problem." ¶ 50 Dr. Thomma also testified that, according to the records he reviewed, A.B. had a history of making inconsistent statements, and opined that her mild mental retardation and medical history suggest she might have had difficulty recalling and relating events that had happened to her. ¶ 51 On redirect examination, Dr. Thomma testified:
"[WITNESS DR. THOMMA] A: My opinion is based on the pretrial records that are available, that is, that there is reason to question [A.B.'s] ability to perceive reasonably accurately, reasonably consistently, and relate that without emotional influences that could distort, whether it is conscious or unconscious. There is enough reason to question that ability up until the time of the trial."
Dr. Thomma acknowledged that some of A.B.'s records were incomplete and at times illegible.
Testimony of Defendant
¶ 52 Defendant testified that attorney Basile represented him in his criminal case. Basile did not tell defendant he had any pending criminal cases or any contempt proceedings pending against him, nor that he was addicted to or used crack cocaine, nor that he had financial problems. Defendant testified that he did not know any of these things at the time Basile represented him. If he had known, he would not have allowed Basile to represent him. ¶ 53 Defendant testified he met with Basile approximately five times throughout his representation, and each visit lasted five to ten minutes. During these meetings, defendant noticed that Basile appeared agitated, nervous, was constantly wiping his nose, his speech was sometimes slow and slurred, he was sweating in air-conditioned rooms, and he struggled to maintain a consistent thought. He recalled that Basile sometimes asked him the same question repeatedly, as though he had forgotten he had asked it previously. He also recalled an occasion in which Basile, even after having met defendant, did not recognize him:
"[THE WITNESS DEFENDANT] A: Once he came to see me in the bullpen behind the court. I was standing right there in front of him, and he had to resort to his tablet and call out my name. I was standing right there in front of him, so he definitely didn't recognize me."He described Basile's speech:
"[THE WITNESS DEFENDANT] A: At times, [Basile's speech] was slow, slurred. Like he didn't know exactly what word he wanted to use or that he forgot what he was fitting to say. Like he was always sucking on something, but there wasn't nothing [in his¶ 54 During their meetings, Basile never discussed investigating the victim's psychiatric condition, nor that he was going to hire an expert to testify about the victim's psychiatric condition. Likewise, Basile never mentioned the results of the blood and semen tests on the sexual assault kit, underpants, bed sheets, or van seat until the day before trial. On the first day of trial, Basile mentioned that the test for the presence of blood in the van and the blood sheets was negative, but he never told him blood was found in the victim's underpants. Basile never told him he was going to agree to a stipulation regarding the blood tests, that he had interviewed the lab technician prior to trial, nor that he had interviewed any of the witnesses prior to trial. Basile did not tell defendant that he had done any investigation, but simply stated that he understood the case. ¶ 55 At the third-stage hearing, defendant claimed Basile repeatedly forgot that defendant had denied ever having sexual relations, consensual or otherwise, with A.B. ¶ 56 Defendant testified that Basile was anxious, late, and nervous during trial. He had dark circles under his eyes as though he had not slept. He often wiped at his nose and looked frail and ill. Basile did not want to talk with defendant about his case. ¶ 57 On cross-examination, defendant admitted he did not file a complaint with the ARDC at the time of trial. He denied he had told Chicago police detectives and an Assistant State's Attorney that he and A.B. agreed to have sex on the day in question, and entered her house with the purpose of doing so. He denied having said that, once in her bedroom, defendant was unable to completely get his penis into her vagina, but instead inserted his finger into her vagina. ¶ 58 Defendant testified that, when he spoke with police, he told them A.B. was flirting with him and propositioned him. She became upset when he refused her advances. Defendant helped her to her house and entered her house in order to place her bookbag on the couch as requested. When he did so, A.B. closed the door and asked him to stay while she went through the house. She walked down the hallway, looking into several rooms, and entered into one of the rooms. She remained in that room for a few minutes. Defendant testified he then heard a noise coming from that room "like something fell or perhaps she fell," so he stepped to the door and looked in. A.B. had dropped her walking stick on the floor. She was sitting on her bed, trying to remove her clothes. Defendant said, "hold on, I already told you this can't happen" and he stepped away from the door, and left the house soon after. Defendant denied having had any sexual contact with A.B. Although defendant told Basile he had spoken with the police when he was arrested, Basil never discussed with him any statement allegedly made to the police or prosecutor. ¶ 59 On redirect, defendant testified he did not have any sexual contact with A.B. and that he repeatedly told this to Basile. Basile, however, consistently forgot what defendant told him. When his case was called on the day of his sentencing, defendant asked the court: "Can I get a new lawyer at this time? Really I don't feel I have been represented very well by him." The court replied: "I won't get into that." ¶ 60 Defendant also testified that Basile failed to appear for his sentencing hearing in April 1996. Basile did not meet with defendant or his mother to prepare for sentencing. ¶ 61 Defendant entered into stipulations as to what the detective and ASA would testify to regarding his statements to them, that is, his alleged description of consensual sexual acts with A.B. No statement was recorded or signed by defendant. ¶ 62 After defendant testified, the court heard argument over the admission of other exhibits that defendant sought to admit. Over the State's objection, the court allowed defendant to admit Basile's affidavit as well as the transcript of Basile's testimony in front of the 2000 ARDC hearing board. Also over the State's objection, the court allowed defendant to admit records relating to contempt filings in other courtrooms from May and June of 1996. The court denied the admission of contempt files from 1998 and 1999 on the grounds that those dates were to remote. The court allowed defendant to admit Basile's arrest in June 1995 for attempt possession of a controlled substance on the grounds that those charges were dismissed in exchange for Basile's agreement to successfully complete a drug program. The court also admitted, over the State's objection, a transcript of the contempt proceeding before Judge Kazmierski for failure to appear in May 1996. Defendant sought the admission of the Illinois Supreme Court's suspension order for Basile, but the court ruled it was not relevant because of the remoteness in time. However, it allowed defendant to use it for impeachment purposes. The court ruled that ARDC files consisting of complaints by some of Basile's other clients was also inadmissible except for impeachment purposes. The court allowed defendant to admit into evidence Basile's deposition transcript from the ARDC proceedings. ¶ 63 Basile's ARDC record reveals that, at the time of defendant's trial, Basile suffered from numerous medical ailments, had an extensive drug use problem, had a pending felony drug case and multiple indirect criminal contempt matters pending for failure to appear in other felony case, as was later suspended from the practice of law as a result of these issues. The report indicates that Basile suffered from various ailments, including: HIV, AIDS, syphilis, dementia, and a crack cocaine addiction. ¶ 64 Although Basile denied that his health problems affected his ability to represent defendant because he was not diagnosed as HIV positive until 1997 and defendant's trial was in 1996, the ARDC record reveals that he indicated to Dr. Stafford Henry, a forensic psychiatrist, that he became HIV positive in 1996. Dr. Henry, who evaluated Basile in 2000 pursuant to an ARDC referral, indicated that Basile's cognitive disabilities affected his ability to practice law. Dr. Henry reviewed Basile's health problems as well as his drug addiction, and found that Basile was "globally impaired," meaning he suffered from dementia "manifested by memory loss, failure to organize and plan, and inability to successfully execute mental calculus and other kinds of tasks expected of someone in his position." Dr. Henry determined:
mouth]."
"I am currently of the opinion, to a reasonable degree of medical and psychiatric certainty, Mr. Basile is not believed appropriate to practice law with requisite competency and skill."
Although defendant entered into these stipulations, he stated in the stipulation that he "in no way waives his objections to the admissibility of the testimony" of the detective and the ASA, "or to the admissibility of the documents upon which their testimony would be based. . . [Defendant] agreed to enter into Stipulation I only in light of this Court's ruling . . . that the testimony of Barnes and Miller are admissible."
Defense counsel objected to these statements on the ground that they were not relevant to defendant's claims, as defendant had withdrawn his claim that Basile was ineffective for arguing a consent defense. The court overruled the objection.
The stipulations include the following paragraphs: From Detective Barnes' stipulation:
"Detective Barnes would also testify that he has no independent recollection of his interview with [defendant], and his testimony would be based solely on his recollection as refreshed by his supplementary report dated July 16, 1995.From ASA Miller's stipulation:
Detective Barnes did not ask [defendant] to sign, nor did defendant sign, any written statement concerning his interaction with [A.B.]. Nor was [defendant's] statement recorded in any way, other than as reported in Detective Barnes' supplemental report dated July 16, 1995."
"Susan Miller would also testify that she has no independent recollection of her interview with [defendant], and her testimony would be based solely on her recollection as refreshed by her notes of her interview with [defendant]. Susan Miller would also testify that she did not ask [defendant] to sign, nor did [defendant] sign, any written statement concerning his interaction with [A.B.]. Nor was [defendant's] statement recorded in any other way, other than as reported in Miller's notes of her interview with [defendant]."
The record filed on appeal initially did not contain many of the documents which were considered by the trial court at the evidentiary hearing. Defendant sought leave in this court to supplement the record with six volumes of exhibits considered by the circuit court. The State opposed this motion, arguing that some of the exhibits had been ruled inadmissible and others had been withdrawn from consideration and, therefore, were not actually considered by the court at the evidentiary hearing. Eventually, this court allowed defendant leave to file an appendix containing only the documents admitted into evidence by the circuit court.
The State's Case
¶ 65 Testimony of Dr. Molly Witten ¶ 66 Licensed clinical psychologist Dr. Molly Witten testified as an expert in the field of pediatric psychology and developmental disorders. She was A.B.'s therapist from 1991 to 1995. Dr. Witten testified that A.B. had severe cerebral palsy and hydrocephalus, which caused auditory processing, visual difficulties, and speech impediment. She wore leg braces and used crutches in order to walk. The first six months of their therapy consisted of family therapy to help the family understand A.B.'s desire for more independence. After that time, Dr. Witten met with A.B. individually one to two times per week. Dr. Witten diagnosed A.B. as having dysthymic disorder, which is a mild, constant depressive state. As she grew older, A.B. became more self-reflective about the limitations her disabilities placed on her and became depressed. Dr. Witten testified that A.B. was not mentally retarded, but that she had a developmental disorder, explaining that A.B. had a more difficult time learning than did other children because of her neurological difficulties in specific areas of sensory processing. ¶ 67 During the time she was treating A.B., A.B. had two shunt malfunctions. When the shunt malfunctioned, A.B. could not think as well as usual, or could not think at all. Dr. Witten had not retained any records of her sessions with A.B. She testified that, when A.B.'s shunt malfunctioned, pressure would build up in her brain, but she was unable to express what was happening. When the shunt malfunctioned, A.B. would say odd things like, "the nurses are throwing the baby out the window." By the time she would say these odd things, she was unable to describe the pressure in her head because "her whole brain was under pressure" and "because by that time, the pressure had affected her brain." Dr. Witten characterized these odd statements as "tangential statements" and "paranoid accusations." However, except for those times, Dr. Witten found A.B. to be "reality bound." ¶ 68 She accompanied A.B. to the emergency room at University of Chicago Hospital on July 2, 1995, and requested a psychiatric consult. She said she remained with A.B. throughout her treatment in the emergency room to act as a "translator" so the doctor could understand what A.B. was saying. Nonetheless, she believes the doctor recorded what A.B. stated inaccurately. It was determined that A.B. was depressed and needed inpatient treatment. She was then transferred to Michael Reese Hospital, where she stayed for six days. She did not have her shunt revised during this time, nor during the following week before the incident with defendant. ¶ 69 Dr. Witten disagreed with the medical documents describing A.B. as mildly mentally retarded. She explained that it was easy for somebody to "misperceive" A.B. because of her speech. She explained that, due to her handicap, it was difficult for people to understand what she was saying and they might think "she's speaking crazy when she's not. She's just hard to understand." ¶ 70 Regarding Dr. Thomma's testimony that A.B. suffered from hallucinations, Dr. Witten testified that, because hallucinations are internal sensory perceptual impressions, it takes a lot of training to determine if a patient is having a hallucination or is malingering. In her opinion, it would have been important for Dr. Thomma to have talked to the people who treated A.B., as well as A.B.'s family members and teachers, in order to render an accurate opinion. Dr. Witten reviewed the medical records reviewed by Dr. Thomma and disagreed with his assessment, opining that there was nothing in the documents that would lead her to conclude that A.B. was unable to perceive, relate, or remember dates or events, or that her credibility would have been affected by her mental condition. ¶ 71 On cross-examination, Dr. Witten testified that A.B. had tangential, loose, and paranoid thought when her shunt malfunctioned. Loose thoughts are thoughts that do not follow in logical order. She also had suspicious thoughts directed toward other people, including thoughts that someone was taking her clothes and thoughts that others might try to harm her. A.B. also heard voices that were not really there. At times, A.B. heard a voice in her head that would insult her or tell her she was not worth anything. ¶ 72 Dr. Witten conceded on cross-examination that the record from the Community Counseling Centers of Chicago reflected that A.B. reported she had been hearing voices since the age of 13 and that, if A.B. had truly reported this, then it contradicted what A.B. told Dr. Witten regarding how long she had been hearing voices. ¶ 73 Testimony of Attorney Basile ¶ 74 The State also presented the testimony of Anthony Basile, defendant's attorney at trial. He represented defendant between July 1995 and April 1996. Basile testified that he previously worked as a civil attorney and then a criminal defense attorney. He was licensed to practice law in Illinois from 1982 until his license was suspended in 2001. At the time he represented defendant, he was a solo practitioner with 50-100 clients, and had cases throughout Cook, Kane, Will, and Lake Counties. He said, "At one point, I became extremely overwhelmed." In approximately 1993, Basile began smoking crack cocaine. He testified:
"[ASSISTANT STATE'S ATTORNEY] Q: Okay. Why did you use crack cocaine?He explained he only used crack cocaine at night in order to stay awake and work. He claimed he "never came to court high." ¶ 75 Basile admitted on cross-examination neither he nor any investigator spoke with or attempted to speak with A.B. before trial. He did not subpoena her mental health or psychiatric records before trial, or at any time. He testified:
[WITNESS BASILE] A: To keep up. I was a solo practitioner. I was stretched between various courtrooms. I was my own paralegal, my own lawyer, my own law clerk, my own secretary. I didn't even know how to turn a computer on at the time I started doing this. So * * * that's why I did it, to stay awake. I didn't do it to get high."
"[ASSISTANT STATE'S ATTORNEY] Q: Why didn't you feel it was necessary to look into the victim's [psychiatric history]? [WITNESS BASILE] A: Because she wasn't accusing him ofNonetheless, Basile admitted that, had he known about certain psychological history, he would have cross-examined A.B. differently:
raping her mentally. She was accusing him of raping her physically."
"[DEFENSE COUNSEL WANG] Q: Now, if you had known that [A.B.] had hallucinations just six days before the incident [with defendant], you would have cross-examined her about that; is that correct?Basile admitted he previously signed an affidavit in which he averred:
[WITNESS BASILE] A: I'm sure I would have.
Q: And if you had known that she had a very serious hospitalization for a suicide attempt just six days before the incident, you would have cross-examined her about that? A: I'm sure I would have.
Q: And if you had known that her - - that even as far back as 1991, she had hallucinations or delusions, you would have cross-examined her about that; correct?
A: Yes.
Q: And so you have never seen any records of [A.B.'s] psychiatric history; correct?
A: Not that I know of.
Q: You didn't talk to any of her treaters?
A: No.
Q: You didn't try to?
A: No.
Q: And you didn't have an investigator try to talk to any of her treaters?
A: No.
Q: And you didn't try to get an expert to testify about [A.B.'s] psychiatric problems?
A: No."
"6. My decision not to examine or ask for discovery in [A.B.'s] mental health history was not a strategic decision. Rather, due to the tremendous volume of cases I had at that time, I simply did not have enough time to investigate this matter."Nonetheless, at the hearing, he testified this was untrue; rather, he said he made the decision not to investigate because "she wasn't accusing him of raping her mentally. She was accusing him of raping her physically." ¶ 76 Basile testified that he filed a motion for discovery from the State, believing that it would cover A.B.'s psychiatric records even though these would have been records from third-party treaters. Basile never saw any of records of A.B.'s psychiatric history, nor talked to any of her treaters, nor attempted to talk to any of her treaters. Basile agreed that A.B.'s credibility was at issue at the trial and that he wanted to get as much information about her as possible to attack her credibility. He thought that, because he filed the discovery motion and no psychiatric records came back, A.B. did not have any psychiatric records. He testified he relied on the discovery request instead of sending a subpoena to third-party treaters because it would save money. ¶ 77 Basile admitted that, during the time he represented defendant, he smoked two rocks of crack cocaine five to seven days per week. He denied that he spent $300-$400 per week on crack cocaine, but was impeached with his October 8, 1999, sworn testimony before the ARDC in which he testified he spent that amount per week on crack. He denied he was addicted to crack cocaine. Basile testified that, between July 1995 to April 1996, he was often sleeping only two to three hours per night and relying on crack cocaine use to keep him awake during the nighttime hours. Basile never told defendant that he used crack cocaine. ¶ 78 He denied that he slurred his speech or constantly rubbed his nose, but explained that he could have appeared sweaty, as his law practice required him to visit several different courtrooms. He denied being confused about the facts in defendant's case and explained it was possible he asked defendant the same question several times because he wanted to make sure that defendant was prepared if he decided to testify. ¶ 79 Basile recalled that defendant told him he had consensual sex with A.B. He testified that defendant told him A.B. came on to him, that he tried to have sex with her, but could not achieve an erection. He testified that he did not argue there was no sexual contact, as that version would not have been truthful. ¶ 80 Basile testified he was arrested for attempt possession of a controlled substance on June 13, 1995. This charge was dismissed in exchange for attending a drug treatment program. ¶ 81 Basile testified that he was diagnosed with syphilis in 1980 or 1982, HIV in 1997, and with AIDS in 2003. He was subsequently diagnosed with coronary heart disease. He testified he did not suffer from symptoms of AIDS or syphilis at the time he represented defendant, and these diseases did not affect his ability to represent defendant. He denied that he suffered dementia at the time he represented defendant. ¶ 82 Basile did not recall what the crime lab report stated about the blood stains on A.B.'s underpants, but he knew that blood was found on them. Basile testified he entered into a stipulation regarding crime lab technician Crystal Watson's blood analysis because it would have been a waste of time to call her live because she would testify to the same thing to which the parties stipulated. He also testified he did not stipulate to the location of the blood on the underpants nor to the fact that there was only a little bit of blood on the underpants. Basile did not interview the crime lab technician prior to trial. ¶ 83 Testimony of ASA Snow ¶ 84 ASA Luann Rodi Snow testified she was the prosecutor during defendant's trial. Prior to trial, she met with A.B. two or three times to discuss the case. She was able to understand what A.B. was saying and did not have any concerns about anyone else having difficulty understanding her. Snow testified she was aware A.B. was in a day treatment program for depression at the time of the incident, but she did not subpoena A.B.'s psychiatric records as part of discovery because she thought the victim was coherent, logical, and did not appear to have a mental health issue. At trial, Snow argued in closing that the stipulation regarding the blood found in A.B.'s underpants corroborated A.B.'s version of events. ¶ 85 Snow testified that she was aware defendant had made a post-arrest statement to police detectives. She was prepared to introduce the statement at trial if defendant testified and denied he committed the offense. ¶ 86 Snow denied ever noticing Basile acting in an odd or bizarre manner in court, and did not note any symptoms of dementia when she spoke with him either pretrial or during trial. She recalled that Basile failed to appear for sentencing. ¶ 87 Further Evidence ¶ 88 The parties stipulated that, if called to testify, Chicago police detective Barnes would testify that he and Detective Bradley interviewed defendant on July 15, 1995. During the interview, defendant gave conflicting accounts of his interactions with A.B. the previous day. His accounts ranged from complete denial to admitting he had consensual sexual relations with A.B. ¶ 89 The parties also stipulated that, if called to testify, ASA Miller would testify she interviewed defendant and he told her he had consensual sexual relations with A.B. ¶ 90 Decision following evidentiary hearing ¶ 91 Following the conclusion of evidence, the court filed a written order in which it granted defendant's request for a new trial. In the memorandum order, the court analyzed each of defendant's allegations of ineffective assistance of trial counsel pursuant to Strickland v. Washington, 466 U.S. 668 (1984), and determined that counsel's representation was not objectively unreasonable and defendant was not prejudiced by his representation. Nonetheless, the court, relying on two decisions mentioned by this court when we remanded the cause for the evidentiary hearing, People v. Williams, 93 Ill. 2d 309 (1982), and People v. Sanchez, 329 Ill. App. 3d 59 (2002), determined that fundamental fairness required defendant be granted a new trial. The court specifically noted that, at the time of defendant's trial, Basile: (1) suffered from numerous medical ailments; (2) had an extensive drug use problem; (3) had a pending drug case; (4) had multiple indirect criminal contempt matters in other courtrooms; and (5) Dr. Henry, as part of his review during the ARDC proceedings, determined that Basile's cognitive disabilities affected his ability to practice law. The court stated:
"Now that the extent of Basile's conduct, both professionally and personally, has come to light, this court is faced with conduct that is more egregious than counsel's conduct in both Sanchez and Williams. In Williams, counsel was disbarred because of misconduct involving the handling of a former client's estate. In Sanchez, the defendant was also represented by Basile. However, the court vigorously admonished the defendant about his counsel's pending criminal matters, and the defendant¶ 92 The State appealed.
waived those issues and retained counsel to represent him at trial. Despite the defendant's waiver, the appellate court still found that the principles of fundamental fairness required that the defendant be granted an evidentiary hearing on his claim of ineffective assistance of counsel.
Here, petitioner was never notified that Basile had a pending felony drug case and several indirect criminal contempt matters in other courtrooms throughout the pendency of his case. Petitioner likewise had no knowledge of Basile's personal and professional problems. The wrongs committed by Basile in his personal and professional life make it difficult for this court to fairly assess the impact his physical and psychological health and drug usage had on petitioner's trial. At the evidentiary hearing, Basile testified that his medical problems and drug use had no effect on his ability to represent petitioner at trial. However, there is no way that this court can assess the cumulative impact that Basile's medical issues and drug usage had on his performance at trial. This court believes that it was fundamentally unfair where petitioner unknowingly had an attorney suffering from these multiple, and potentially debilitating, conditions represent him at trial. After learning of the facts disclosed in Basile's ARDC file, there is no way for this court to divine what impact these factors had specifically on petitioner's case. If the law suggests that Basile cannot be presumed competent, and it seems that the appellate court is sub
silentio saying as such, then petitioner should be granted a new trial.
In sum, although the record indicates that Basile provided effective representation pursuant to Strickland, the principles of fundamental fairness require that petitioner be entitled to a new trial. For these reasons, petitioner is granted a new trial."
In his sworn ARDC testimony, Basile testified his crack cocaine habit cost him "[p]robably close to a hundred dollars" per day. He testified that he smoked crack many days a week and sometimes every day of the week. He estimated that he spent "about three to four hundred" dollars per week on crack cocaine.
When Watson was later deposed, she testified that the blood was found on the waistband of the underpants.
¶ 93 II. ANALYSIS
¶ 94 In this appeal, the State contends that the trial court erred in granting defendant postconviction relief in the form of a new trial. Specifically, the State argues that, where the court found no ineffective assistance of counsel, it exceeded its authority when it ordered a new trial because there is no "interests of justice" exception under the Act. Defendant argues that, in the event this court decides the circuit court erred in employing an "interests of justice" standard, we should nonetheless affirm the decision of the circuit court on the ground that defendant received ineffective assistance of trial counsel. For the following reasons, we affirm the decision of the circuit court. ¶ 95 The Post-Conviction Hearing Act provides a remedy to a criminal defendant whose federal or state constitutional rights were substantially violated in his original trial or sentencing hearing. People v. Pitsonbarger, 205 Ill. 2d 444, 455 (2002); 725 ILCS 5/122-1 et seq. (West 2010). Proceedings are initiated by the filing of a petition verified by affidavit in the circuit court in which the conviction took place (725 ILCS 5/122-1(b) (West 2010)), and ultimately may consist of up to three distinct stages (People v. Pendleton, 223 Ill. 2d 458, 471-72 (2006)). If a petition is not summarily dismissed by the trial court, it advances to the second stage, where an indigent defendant is provided assistance by counsel. People v. Hobson, 386 Ill. App. 3d 221, 230-31 (2008). At the second stage, the petition under consideration must make a substantial showing of a constitutional violation or be subject to a motion to dismiss. See People v. Vasquez, 356 Ill. App. 3d 420, 422 (2005); 725 ILCS 5/122-5 (West 2010). If the State's motion to dismiss is denied, or no such motion is filed, the State must file a timely answer to the postconviction petition. 725 ILCS 5/122-5 (West 2010). If, upon consideration of the petition, with any accompanying documentation and in light of the State's answer, the trial court determines that the requisite showing of a constitutional violation has been made, a third-stage evidentiary hearing must follow. Hobson, 386 Ill. App. 3d at 231. ¶ 96 Where a postconviction evidentiary hearing involves fact-finding and credibility determinations, we will only disturb the decision of the trial court where it is manifestly erroneous. Pendleton, 223 Ill. 2d at 473. Manifest error is error that is clearly evident, plain, and indisputable. People v. Morgan, 212 Ill. 2d 148, 155 (2004). "Nevertheless, if the issues presented are based on pure questions of law, we apply a de novo standard of review, unless the judge presiding over the proceedings had some special familiarity with the trial or sentencing of the defendant and that had some bearing on the disposition of the postconviction petition." People v. Davis, 377 Ill. App. 3d 735, 744 (2007). ¶ 97 We first turn to the question of whether defendant was denied the effective assistance of trial counsel for failure to investigate A.B.'s extensive mental health history. Defendant claims that, had counsel investigated A.B.'s psychiatric history, cross-examined her on it, and presented testimony from an expert or her emergency room treaters showing the extent and persistence of her mental illness, including both visual and auditory hallucinations, the factfinder would have found a reasonable doubt regarding defendant's guilt. Defendant argues that, had the trier of fact had such evidence before it, there is a reasonable probability the outcome of trial would have been different. We find that defendant was denied the effective assistance of trial counsel and, for this reason, affirm the decision of the trial court to grant postconviction relief to defendant. ¶ 98 Generally, to establish a claim of ineffective assistance of counsel, a defendant must show that his attorney's representation fell below an objective standard of reasonableness and that he was prejudiced by this deficient performance. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); People v. Coulter, 352 Ill. App. 3d 151, 157 (2004). Failure to make the requisite showing of either deficient performance or sufficient prejudice defeats the claim. People v. Palmer, 162 Ill. 2d 465, 475-76 (1994). ¶ 99 " 'Whether defense counsel was ineffective for failure to investigate is determined by the value of the evidence that was not presented at trial and the closeness of the evidence that was presented. [Citation.] Attorneys have an obligation to explore all readily available sources of evidence that might benefit their clients. [Citation.]' People v. Morris, 335 Ill. App. 3d 70, 79 (2002)." People v. English, 403 Ill. App. 3d 121, 137 (2010). ¶ 100 To satisfy the first Strickland prong, a defendant must overcome the presumption that contested conduct which might be considered trial strategy is generally immune from claims of ineffective assistance of counsel. People v. Martinez, 342 Ill. App. 3d 849, 859 (2003). "Strategic choices made by counsel after having made a thorough investigation are virtually unchallengable." People v. Johnson, 206 Ill. 2d 348, 376 (2002) (citing People v. Towns, 182 Ill. 2d 491, 514 (1998)). "Strategic decisions made after a less than complete investigation, however, will survive challenge only if the limited investigation was the result of reasonable professional judgment (citing Strickland, 466 U.S. at 687-88))." Johnson, 206 Ill. 2d at 376; see also People v. McGhee, 2012 IL App. 1st 093404 (2012), ¶ 36 (recognizing the strong presumption of sound trial strategy, but noting that "[t]he complete failure to investigate a viable defense, however, can be objectively unreasonable and support an ineffective assistance claim."). ¶ 101 To establish prejudice, a defendant must show there is a reasonable probability that, but for counsel's insufficient performance, the result of the proceeding would have been different. People v. Easley, 192 Ill. 2d 307, 317 (2000). Specifically, the defendant must show that counsel's deficient performance rendered the result of the proceeding unreliable or fundamentally unfair. Easley, 192 Ill. 2d at 317-18. ¶ 102 The circuit court, in its post-evidentiary hearing ruling, determined that Basile was not ineffective for failure to investigate A.B.'s mental health history. We quote herein the court's entire treatment of this issue:
"A. Mental Health Records¶ 103 Reasonable Conduct Under Strickland ¶ 104 The primary evidence presented against defendant at trial was the testimony of A.B. The physical evidence presented was that there was no semen found on any of the swabs or samples collected, including from A.B.'s underpants, the bed sheet, and the van seat. Nor was there any blood found on the bed sheet. The only blood found was on A.B.'s underpants which, although stipulated to at trial as having "tested positive for human blood," we now know, post-evidentiary hearing, that the blood was only on the waistband of A.B.'s underpants. Defendant's post-arrest statements to the detective and ASA in which he admitted to having consensual sexual contact with A.B. was not presented at trial. ¶ 105 The evidence in this case was closely balanced and consisted almost entirely of A.B.'s testimony. Had counsel investigated A.B.'s mental health history, he would likely have found evidence with which to impeach A.B. at trial, including the fact that she had a history of visual and auditory hallucinations, as well as recollections of events that never happened. Basile explicitly stated in his 2007 sworn affidavit that he had no strategic reason for failing to investigate A.B's psychiatric history, but rather failed to investigate because he was too busy with his large caseload. At the evidentiary hearing, he denied he failed to investigate for this reason, instead offering the incoherent explanation that he did not investigate A.B.'s psychiatric history-although he knew she was being treated in a mental health program-because he did not think it necessary "[b]ecause she wasn't accusing him of raping her mentally. She was accusing him of raping her physically." When questioned further by the State, Basile asserted that there was no reason to challenge A.B.'s credibility because the theory at trial was consent. Nonetheless, on cross-examination, Basile admitted that, had he known about A.B.'s extensive psychiatric history, he would have cross-examined her on it. Specifically, Basile testified:
A.B.'s mental health history was much more extensive than what was presented at trial. In a June 21, 2000 deposition for an unrelated civil proceeding, A.B. admitted that she took a variety of drugs, rather than just Prozac, for depression. In that same deposition, A.B. admitted that she had attempted suicide within about a week of her claim of rape and had been diagnosed as bipolar. At the evidentiary hearing, Dr. Thomma testified that A.B. had suffered from hallucinations and that her perception of reality was affected under limited conditions. None of these mental conditions were brought forward during petitioner's trial.
Even assuming that Basile's failure to investigate A.B.'s mental health records was objectively unreasonable, petitioner is still unable to show prejudice. Had Basile investigated and impeached A.B. with her medical records, Basile may have undermined A.B.'s ability to consent and may therefore have jeopardized petitioner's consent defense theory. As noted above, Basile's decision to pursue a consent defense theory at trial was sound because petitioner had made a statement to two detectives and an ASA indicating that he had consensual sexual relations with A.B. Petitioner likewise told Basile that he had consensual sexual relations with A.B. Thus, because A.B.'s mental health records could have potentially
jeopardized Basile's theory of consent at trial, petitioner cannot show that he was prejudiced by Basile's failure to investigate and procure these records.
Nonetheless, had Basile investigated A.B.'s mental health records, petitioner is unable to show a reasonable probability that the result of the proceedings would have been different. At the evidentiary hearing, petitioner offered Dr. Thomma as an expert in the field of psychiatry. Dr. Thomma testified that A.B. had suffered from hallucinations and that her perception of reality was affected. In making this determination, however, Dr. Thomma acknowledged that the records were incomplete, at times illegible, and poorly copied. He also acknowledged that he did not interview the now deceased victim, her family members, or her former treatment providers. The gravamen of his opinion was that A.B. suffered from severe depression. In the end, when questioned about his reliance on incomplete records provided to him by petitioner's counsel, his comment was very telling:
'If I was getting paid to try to come up with the truth, then maybe I would want to make sure that I got the truth, though.'Transcript of Proceedings, p. 93 (December 3, 2010). In sum, Dr. Thomma based
his opinion solely on an incomplete, at times illegible, and poorly copied set of documents totally [sic] 30 pages. For that reason, this court gives little, if any, weight to Dr. Thomma's testimony.
On the other hand, Dr. Witten is an expert based on her knowledge and first-hand experience with A.B. She was in constant communication with A.B. and her family, was in a better position to understand A.B. and describe her physical and mental health problems to the court, and was in the best position to observe her symptoms. Dr. Witten accompanied A.B. to the hospital and spoke to the treating physicians about her shunt malfunction. Accordingly, this court gives great weight to Dr. Witten's testimony that A.B.'s major psychological condition was depression, which was treated by Prozac. When treated, these symptoms dissipated. Dr. Witten testified that A.B. was not suffering from a shunt malfunction at the time of the incident. Based on Dr. Witten's testimony, this court finds that A.B.'s health problems would not have affected her credibility at trial.
Therefore, Basile's failure to perfect the impeachment of A.B. with her medical records after she denied having hallucinations did not prejudice petitioner such that he was denied effective assistance of counsel and a fair trial."
"[DEFENSE COUNSEL WANG] Q: Now, if you had known thatIn addition, Basile failed to issue a subpoena to third-party treaters and instead relied on a discovery motion he filed with the State to discover any mental health history A.B. might have had. He testified that he relied on the discovery request instead of sending a subpoena to third-party treaters because it would save money. Defense counsel had an affirmative duty to investigate, and Basile failed to do so. See English, 403 Ill. App. 3d at 137. ¶ 106 We are mindful that decisions regarding trial strategy are normally immune from claims of ineffective assistance of counsel, but such deference is not warranted where the lack of evidence results from counsel's failure to investigate. See McGhee, 2012 IL App. (1st) 093404 (2012), ¶ 36. We are unable to find a legitimate trial strategy here, where counsel failed to make any investigation into A.B.'s mental health history and, therefore, failed to conduct any meaningful adversarial testing of A.B.'s testimony. The evidence shows that counsel totally failed to investigate or present evidence of A.B.'s extensive psychiatric history or background from readily available sources. Therefore, we hold that counsel's failure to investigate was not a strategic choice among available options, and defendant has overcome the first prong of Strickland. ¶ 107 Prejudice Under Strickland ¶ 108 We now turn to the second prong of Strickland: prejudice to defendant. Defendant contends that, had the trier of fact heard the evidence regarding the impeachment of A.B., the outcome of the trial would likely have been different. We agree. ¶ 109 "[T]he mental history of a witness is relevant to his credibility and a permissible area of impeachment." People v. Dace, 114 Ill. App. 3d 908, 913 (1983) (citing People v. Lindsey, 73 Ill. App. 3d 436 (1979). Accordingly, "[a] thorough examination of a witness's credibility is especially important when that testimony will be determinative of the defendant's guilt or innocence." Dace, 114 Ill. App. 3d at 913. "Almost any emotional or mental defect may materially affect the accuracy of the testimony. A conservative list of such defects would have to include a psychosis, most neuroses, defects in the structure of the nervous system, mental deficiency, alcoholism, drug addiction, and psychopathic personality." People v. Phipps, 98 Ill. App. 3d 413, 416 (1981). ¶ 110 The record in this matter establishes that defense counsel violated his affirmative duty to conduct a reasonable investigation in this case. Counsel's failure in this regard is magnified by the fact that counsel was on notice of A.B.'s history of mental health problems, as the alleged attack occurred as defendant was transporting A.B. from an outpatient mental health treatment program. ¶ 111 Initially, we disagree with the trial court's assessment of this issue and find its conclusion that defendant was not denied the effective assistance of counsel where counsel failed to investigate A.B.'s psychiatric records to be against the manifest weight of the evidence. Initially, our review of the record reveals that the quote the trial court attributes to Dr. Thomma, which it specifically finds "very telling" in its determination that Dr. Thomma's testimony should not be given much weight, is mis-attributed. Dr. Thomma did not say it; the Assistant State's Attorney said it on cross-examination of Dr. Thomma. In its memorandum opinion, the trial court stated:
[A.B.] had hallucinations just six days before the incident [with defendant], you would have cross-examined her about that; is that correct?
[WITNESS BASILE] A: I'm sure I would have.
Q: And if you had known that she had a very serious hospitalization for a suicide attempt just six days before the incident, you would have cross-examined her about that?
A: I'm sure I would have.
Q: And if you had known that her - - that even as far back as 1991, she had hallucinations or delusions, you would have cross-examined her about that; correct?
A: Yes.
Q: And so you have never seen any records of [A.B.'s] psychiatric history; correct?
A: Not that I know of.
Q: You didn't talk to any of her treaters?
A: No.
Q: You didn't try to?
A: No.
Q: And you didn't have an investigator try to talk to any of her treaters?
A: No.
Q: And you didn't try to get an expert to testify about [A.B.'s] psychiatric problems?
A: No."
"In the end, when questioned about his reliance on incomplete records provided to him by petitioner's counsel, [Dr. Thomma's] comment was very telling:This comment was actually made by ASA O'Brien on cross-examination of Dr. Thomma regarding his review of A.B.'s records, what he did, and what "normal procedure" in reviewing records in a case like this is. The testimony was:
'If I was getting paid to try to come up with the truth, then maybe I would want to make sure that I got the truth, though.'* * * In sum, Dr. Thomma based his opinion solely on an incomplete, at times illegible, and poorly copied set of documents totally [sic] 30 pages. For that reason, this court gives little, if any, weight to Dr. Thomma's testimony."
"[ASA O'BRIEN] Q: * * * What I will say is this: Your goal here was try to be as accurate as possible under the circumstances?We disregard the circuit court's opinion in this regard, to the extent that it relied on this mis-attributed quote, which it considered "very telling", to determine Dr. Thomma's credibility. The circuit court's reliance on that comment to support its determination that Dr. Thomma's testimony was entitled to little weight is manifest error. See Morgan, 212 Ill. 2d at 155 (Manifest error is error that is clearly evident, plain, and indisputable). ¶ 112 We also disagree with the circuit court's assessment that the "gravamen" of Dr. Thomma's opinion was that A.B. suffered from severe depression. Rather, Dr. Thomma clearly testified that A.B. suffered from brain damage due to complications of hydrocephalus, had cerebral palsy, suffered from either mild retardation or "right on the border of mental retardation," and intermittent seizures. Dr. Thomma testified that the seizures and hydrocephalus affect her mental functioning through: (1) a "direct effect on the brain," meaning a physical change in the brain that affects memory, emotion, self-control, and impulsivity; and (2) she was challenged at school and could not keep up with other children, which affected her psychological well-being. Dr. Thomma also testified A.B. suffered from "psychotic symptoms," or a "shorthand break from reality." He described a situation in which A.B. had "numerous delusions and hallucinations." He also noted that A.B. reported hearing voices numerous times in the record. He also testified that she had "incredible severe depression at times," as well as anger, overreaction, and "difficulty navigating life." He testified that the records reflected A.B. had a number of personality disorders, including "very significant" borderline personality disorder. ¶ 113 Dr. Thomma's assessment of A.B. included that she suffered from severe depression, but that was only a portion of Dr. Thomma's assessment. In combination with the mis-attributed quote, as discussed above, which the circuit court considered "very telling," we find the circuit court's determination that Dr. Thomma's testimony was due "little, if any, weight" is against the manifest weight of the evidence. ¶ 114 The other medical testimony offered at the evidentiary hearing was that of Dr. Witten, A.B.'s treating therapist at the time of the alleged attack. When she testified at the 2011 evidentiary hearing, Dr. Witten ceased treating A.B. in 1995, and did not retain any of her treatment records. Dr. Witten disagreed that A.B. was mildly mentally retarded. She agreed that A.B. heard a voice in her head that would insult her. She opined that A.B. was severely depressed. Dr. Witten acknowledged that A.B. was prone to "paranoid accusations" and "tangential statements" when her shunt malfunctioned, but opined that, except for those times, A.B. was "reality bound." In the end, we have two experts who disagree with one another. The only conclusion we can properly draw is that A.B. had symptoms of mental illness when she had a shunt malfunction and, perhaps, even when she was not having a shunt malfunction. Whether or not her shunt was malfunctioning during her July 1995 emergency room visit, the record reflects that she was experiencing symptoms of psychosis, including having auditory hallucinations. Accordingly, whether the cause of the psychotic symptoms was shunt malfunction or mental illness, the record shows that A.B. was suffering symptoms of psychosis at or very near the time of the incident on July 14, 1995. Had this information been presented at trial, in combination with the extensive mental health history including auditory and visual hallucinations as discussed herein, there is a reasonable probability that the result of trial would have been different. See Easley, 192 Ill. 2d at 317. ¶ 115 The record in this matter establishes that defense counsel violated his affirmative duty to conduct a reasonable investigation in this case. Counsel's failure in this regard is magnified by the fact that counsel was on notice of A.B.'s history of mental health problems, as the alleged attack occurred as defendant was transporting A.B. from an outpatient mental health treatment program.
[WITNESS DR. THOMMA] A: With the resources available.
[ASA O'BRIEN] Q: Okay. The resources available-what does that mean to you? What resources are available?
[WITNESS DR. THOMMA] A: The records.
[ASA O'BRIEN] Q: The written records:
[WITNESS DR. THOMMA] A: Yes.
[ASA O'BRIEN] Q: Okay. Did [defense counsel] tell you don't
call any of the doctors and speak to them to see if they have any recollection about [A.B.]?
[WITNESS DR. THOMMA] A: No, she didn't.
[ASA O'BRIEN] Q: So you could have if you wanted to?
[WITNESS DR. THOMMA] A: It is totally not normal procedure. The reason for a written medical record is exactly this purpose. Whether it is treating somebody - - there is a record of what's happened. Maybe in legal cases like this, this is why there is a written record.
[ASA O'BRIEN] Q: I understand that - -
[WITNESS DR. THOMMA] A: Otherwise, we are going to be calling 30, 40 people routinely saying, well, I am not sure if I understand if you really wrote it accurately.
[ASA O'BRIEN] Q: Well, I don't know. If I was getting paid to try to come up with the truth, then maybe I would want to make sure that I got the truth, though."
In so doing, we affirm the trial court's grant of postconviction relief to defendant, but do so on grounds other than those upon which the trial court decided. We note that this court may affirm judgment on any ground called for by the record, even where the trial court did not rely on that ground. See Rodriguez v. Sheriff's Merit Com'n of Kane County, 218 Ill. 2d 342, 357 (2006) (reviewing court "is not bound to accept" reasons given by trial court for its judgment and can sustain trial court's decision on any ground called for by record); Wilkerson v. Paul H. Schwendener, Inc., 379 Ill. App. 3d 491, 493 (2008); Howard v. Firmand, 378 Ill. App. 3d 147, 149 (2007).
Our review of the record reveals that this quote is mis-attributed and taken quite out of context. As discussed further below, rather than being a quote from Dr. Thomma, this comment was actually made by the Assistant State's Attorney on cross-examination of Dr. Thomma.
We note that Dr. Witten disagrees with the emergency physician's assessment of A.B., arguing that he may have misunderstood what she was saying because her speech was difficult to understand. However, Dr. Witten also testified that she accompanied A.B. to the emergency room and remained there in order to act as a "translator" to the treating personnel. Therefore, we are not persuaded that the emergency physician's assessment is mistaken.
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Double Jeopardy
¶ 116 Finally, we address any double jeopardy concerns created by the possibility of a new trial. The prohibition against double jeopardy forbids a second trial if the evidence was insufficient to prove defendant guilty beyond a reasonable doubt in the initial proceeding. People v. Hogan, 389 Ill. App. 3d 91, 106 (2009). There is no double jeopardy concern in the instant case, as we conclude that the evidence presented at trial was sufficient to prove defendant guilty beyond a reasonable doubt. At trial, the State presented evidence that included testimony from A.B., a stipulation that blood was found on A.B.'s underpants, and testimony from defendant's employer. People v. Britton, No. 1-96-1700 (1997) (unpublished order under Supreme Court Rule 23). Based on the evidence considered by the trial court, we concluded in defendant's direct appeal, as we do now, that the evidence supported the conviction. People v. Britton, No. 1-96-1700 (1997) (unpublished order under Supreme Court Rule 23). ¶ 117 Other Issues on Appeal ¶ 118 In light of our disposition of the ineffective assistance of counsel issue, we need not consider the State's other argument that there is no "interests of justice" exception to the Act.
¶ 119 III. CONCLUSION
¶ 120 For all of the foregoing reasons, we affirm the order of the circuit court of Cook County granting defendant postconviction relief. ¶ 121 Affirmed. ¶ 122 EPSTEIN, J., specially concurring. ¶ 123 I concur in the judgment. I agree that defense counsel, admittedly on notice of A.B.'s mental health problems, did not conduct a reasonable investigation into A.B's psychiatric history, and I agree that defendant was prejudiced by this failure. ¶ 124 I write separately only to add that defense counsel likely would have been able to obtain A.B.'s mental health records through the established procedures for discovery of a witness' mental health records in a criminal case. See, e.g., People v. K.S., 387 Ill. App. 3d 570, 573-74 (2008) (explaining that discovery of mental health records of a witness is permissible if defendant can show that the requested records are material and relevant to the witness' credibility, and an in camera hearing with counsel present may be necessary if witness or doctor asserts privilege). Here, there is a reasonable probability that Basile could have obtained A.B.'s mental health records (as defense counsel did in the post-conviction proceedings), where A.B. was in a day program being treated for depression; the assault occurred during the course of treatment, immediately after A.B. had left the hospital; and A.B.'s testimony was central to establishing defendant's guilt. See, e.g., People v. Dace, 114 Ill. App. 3d 908 (1983) (reasoning that there was "articulable evidence that raises a reasonable inquiry of a witness's mental health history" where state's chief witness had been involuntarily committed to a mental health center less than two weeks before the offenses occurred). Accordingly, under Strickland's first prong, a reasonable defense attorney, having the information available to Basile, would have at least made an effort to obtain A.B's mental health records through discovery. Furthermore, under Strickland's second prong, there is a reasonable probability that the court would have allowed for the discovery of A.B's records.