In Re T.W.

• Decision Date: 30 June 2010
• Docket Number: No. 1-09-0197.,1-09-0197.
• Citation: 342 Ill.Dec. 234,402 Ill.App.3d 981,932 N.E.2d 125
• Parties: In re T.W., a Minor, (The People of the State of Illinois, Petitioner-Appellee, v. T.W., Respondent-Appellant).
• Court: United States Appellate Court of Illinois

402 Ill.App.3d 981

932 N.E.2d 125

342 Ill.Dec. 234

In re T.W., a Minor, (The People of the State of Illinois, Petitioner-Appellee, v. T.W., Respondent-Appellant).

No. 1-09-0197.

Appellate Court of Illinois,First District, Fifth Division.

June 30, 2010.

COPYRIGHT MATERIAL OMITTED.

Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, and Julianne Johnson, Assistant Appellate Defender, Office of the State Appellate Defender, of Chicago, for Appellant.

Anita Alvarez, State's Attorney of Cook County, of Chicago. (Alan J. Spellberg, Amy Watroba Kern, and Martin Syversten, of counsel), for Appellee.

Justice HOWSE delivered the opinion of the court:

Respondent T.W. was charged in a petition for adjudication of wardship with one count of aggravated criminal sexual abuse and two counts of aggravated criminal sexual assault. The trial court entered a finding of delinquency on all counts. Respondent was sentenced to an indeterminate amount of time in the Illinois Department of Juvenile Justice, not to exceed his twenty-first birthday. On appeal, respondent contends the trial court erred in denying him funds to obtain an expert witness, in violation of section 113-3(d) of the Illinois Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-3(d) (West 2008)). Respondent also contends his trial counsel rendered ineffective assistance by failing to withdraw as counsel after the trial court denied funds for an expert witness, and by misunderstanding the basic elements of the charged offenses. For the reasons that follow, we affirm the trial court's judgment.

FACTS

The testimony adduced at respondent's trial established that on June 14, 2005, the six-year-old victim, A.S., went to the Evanston YMCA with his mother for swim lessons. While A.S. was changing into his swimsuit, an African-American male allegedly walked into the men's locker room and offered the victim a lollipop. The male took the victim into a bathroom stall and put him on a changing table. The male then rubbed his penis on the victim's anus. After the male took the victim off the changing table and put him face-down on the floor, the male continued to rub his penis on the victim's anus. When the male let the victim go, A.S. pulled on his swim trunks and went to the pool area.

After the victim told a YMCA swim instructor and his mother what happened, the YMCA director called the police. While they waited for the police to arrive, the victim went into the men's locker room with the swim instructor to change back into his street clothes. When Evanston police officer Heidi Bernhardt arrived, she met with the victim and his mother. Officer Bernhardt then went to the locker room to photograph the scene. She recovered a towel from a garbage can, and a condom that was still in its package from a stairwell. Both items were placed into property inventory in a sealed condition at the Evanston police station. Evanston police detective Berman also responded to the scene. According to Detective Berman, the victim described the person who assaulted him as “in his 30's, about six feet tall, slim build with braided hair pulled back into a ponytail, wearing a red shirt, dark pants.”

Later, when the victim's mother returned to her home, she noticed her son's swimsuit had a stain on the inside of it. She put the suit in a ziplock bag and called the police. Officer Bernhardt picked the bag up from the victim's home around 20 minutes later. The stain on the swimsuit was subsequently used by the Illinois State Police lab to generate a DNA profile that did not belong to the victim.

Prior to respondent's trial, defense counsel filed a motion to provide the defense with funds for an expert witness. The motion noted that during the discovery process, defense counsel discovered the State's case rested entirely on DNA analysis that did not exclude the respondent. Defense counsel alleged the respondent was indigent and was being represented without charge “ by the indigent defense nonprofit Evanston Community Defender Office, Inc.” Defense counsel requested that the court enter an order granting funds to be used by the defense “to hire, to consult with, and potentially call as a witness an expert in DNA analysis.”

During a hearing on the motion, defense counsel explained that he worked for the Evanston Community Defender's Office, which is a not-for-profit corporation funded in part by the City of Evanston to assist low-income families. The trial court noted:

“[T]he normal way an indigent person is represented in this court and in this county system are by the Cook County Public Defender's Office. The Cook County Public Defender's Office is funded by the taxpayers of Cook County, and they have in their arsenal, money for expert witnesses no matter whether-they may be for sex offenses, or for murder, or any other types of offenses.”

The court informed defense counsel that if the Evanston Community Defender's office did not feel it could adequately represent defendant by paying for an expert witness, the court would appoint the public defender's office to represent the minor.

When defense counsel explained the Evanston Community Defender's office could not pay for the expert, much in the same way that private appointed counsel would not have that in their resources, the court found:

“There's a key word; appointed, counsel. You voluntary [sic] stepped in and represented this individual. You were not appointed by this Court. * * * We are all involved in a budget crunch, as is Cook County. They're laying off workers everywhere. And there's a system developed in Cook County called Cook County Public Defender's office who represent indigent individuals. You voluntarily stepped in and took this case. If you cannot afford-if you're telling me the Evanston Community Defender's Office cannot afford to represent him, then I'm going to appoint the Cook County Public Defender's office to sit in and join in this case.”

The court then appointed the public defender to represent respondent. At a subsequent status hearing, the public defender's office objected to being appointed to the case. The court vacated the appointment of the public defender without discussion.

Returning to the issue of the pending motion for funds for an expert witness, the trial court noted that because the Evanston Community Defender's program was not appointed by the court it became its responsibility to provide funding for any expert witnesses. The court denied defense counsel's motion. The court admitted the request for funds was for a “crucial expert witness.” The court said that if defense counsel could not adequately represent respondent, it was counsel's duty to withdraw so the public defender could be appointed. In response to defense counsel's claim that he was otherwise adequately qualified to represent the minor besides the lack of funds to hire an expert, the court noted:

“You voluntarily came in and took this case. Now it becomes your responsibility to adequately represent this minor. That's an ethical obligation on your behalf. It does not effect the minor's 6th Amendment right to Counsel. But, you have got to represent this minor adequately. If you feel that you cannot represent this minor in the nature and structure of your office, then it becomes-then that's a matter up to you.”

Defense counsel did not withdraw and the matter proceeded to trial.

At trial, the victim's mother testified she heard A.S. tell the police the man who attacked him was in his late 20s to early 30s. Detective Gershon testified he photographed respondent on December 14, 2007, which included pictures of tattoos on respondent's forearms. During his prior custodial encounters with respondent, Detective Gershon had not mentioned that respondent had any tattoos in his reports. Detective Gershon said he could not be certain if he looked at respondent's arms on those occasions.

Sergeant Collier testified he collected a buccal swab from respondent on December 14, 2007, following a court order. Blake Aper, a forensic DNA and biology analyst at the Illinois State Police Rockford Forensic Science Lab, testified he was qualified as an expert in forensic DNA analysis. He said that after receiving the swimsuit in a sealed condition, he saw a stain on the inside rear portion of the suit. Aper tested the stain for semen and saw sperm cells. He then performed tests to extract DNA from the sample and create a DNA profile. After comparing respondent's DNA profile from the buccal swab to the DNA profiled identified from the stain on the victim's suit, Aper offered his expert opinion that the DNA profiles matched. Aper testified the DNA profile would be expected to occur in 1 out of 4.6 quintillion black individuals, 1 out of 2.6 septillion white individuals, or 1 out of 3.7 septillion Hispanic individuals.

On cross-examination, Aper explained the statistics are actually based on how frequently you would find that profile in the random population, not that it belongs to a certain person. Aper admitted he could not tell how the stain got onto the swimsuit. Aper admitted the stain could have been transferred onto the swimsuit if the suit had been dropped onto some fluid on the ground or the victim sat in the fluid.

Bonnie Brunette testified for the defense that she conducted a “ victim-sensitive interview” with A.S. on June 16, 2005. When Brunette asked A.S. to described his attacker during the interview, A.S. said the person was about the age of his dad, late 20s to early 30s. A.S. told her the attacker was about 6 feet tall and looked like a basketball player. A.S. also told Brunette he thought the man in the locker room had tattoos on his forearms and was unshaven.

Respondent's adoptive mother testified that in June 2005, respondent did not have any tattoos or facial hair. She said respondent was 5 feet 6 inches tall at the time. The parties stipulated that Saul Rivere, a tattoo artist, would testify that to...