People v. Cunningham

ILLINOIS OFFICIAL REPORTS
Appellate Court

People v. Cunningham, 2012 IL App (3d) 100013

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

District & No. Third District
Docket No. 3-10-0013

Rule 23 Order filed November 22, 2011
Motion to publish
allowed January 11, 2012
Opinion filed January 11, 2012

Held Defendant’s conviction for aggravated criminal sexual abuse of his
(Note: This syllabus daughter was upheld over his contentions that overhear recordings of
constitutes no part of conversations he had with the victim were improperly admitted and that
the opinion of the court his counsel was ineffective in failing to object to the overhear evidence,
but has been prepared since defendant presented only conjecture and unsubstantiated
by the Reporter of assumptions that the trial judge’s impartiality was affected by his
Decisions for the participation in approving the overhear and there was no evidence of
convenience of the partiality that would have required him to recuse himself, there was no
reader.)
error in the overhear application, the issue was waived on appeal by
defendant’s failure to object to the overhear procedure or the application
or to raise the issue in a posttrial motion, defendant waived the claim that
he was not timely provided with the overhear application and order, the
State’s failure to exactly comply with the overhear statute’s notice
requirements did not require suppression, and defendant’s counsel was
not ineffective.
Decision Under Appeal from the Circuit Court of Whiteside County, No. 08-CF-225; the
Review Hon. Stanley Steines, Judge, presiding.

Judgment Affirmed.

Counsel on Maureen Williams, of Peoria, Robert A. Heap (argued), of Kuhn, Heap
Appeal & Monson, and Robert G. Black, of Law Offices of Robert G. Black,
both of Naperville, for appellant.

Gary L. Spencer, State’s Attorney, of Morrison (Terry A. Mertel and
Mark A. Austill (argued), both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Justices Holdridge and McDade concurred in the judgment and opinion.

OPINION

¶1 Defendant Robert Cunningham was convicted of aggravated criminal sexual abuse
following a bench trial at which two overhears that recorded conversations between
Cunningham and his daughter, the alleged victim, were admitted into evidence. Cunningham
contends that the statutory requirements for an overhear were not satisfied, that he was
denied a fair trial when the overhear recordings were improperly admitted at trial, and that
he was denied effective assistance of counsel. We affirm his conviction.

¶2 FACTS
¶3 In May 2008, Natalie P. contacted Whiteside County law enforcement alleging that she
had been sexually abused by her father, defendant Robert Cunningham, in the summer and
fall of 1998, when the family lived in Prophetstown. Based on her complaint, and with the
approval of Whiteside State’s Attorney Gary Spencer, Sergeant Andrew Henson of the
Whiteside County sheriff’s department submitted, along with his affidavit, an application for
an overhear to trial judge Stanley Steines. A hearing ensued on the overhear application at
which Henson testified, and Natalie appeared and consented to the use of the eavesdropping
device. The trial court approved the application and two subsequent conversations between
Natalie and Cunningham were recorded. Based on the evidence revealed in those

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 conversations, an indictment issued charging Cunningham with two counts of aggravated
criminal sexual abuse (720 ILCS 5/12-16(b), (d) (West 2008)).
¶4 A bench trial took place at which the following evidence was presented. Natalie testified
that her date of birth was July 12, 1982, and that sometime between June 1 and October 31,
1998, when she was 14 or 15 years old, she was alone in the family home with her father.
Her mother and sister were out of town for the day. She and her father were sitting on the
couch. She had her legs extended from one end of the couch to the other. Cunningham
offered to massage her legs, which was a typical family activity. He massaged her calves and
moved his hands up to her thigh area. He then “touched the outside of [her] underwear above
[her] vagina and tried to massage [her] there.” The incident lasted about two seconds until
she moved away from him. He asked her whether she had ever masturbated and whether she
would let him “masturbate” her. When she refused, he tried to touch her again but only
touched the outer part of her leg. She grabbed a book of catechism and read to her father a
passage on the sins of masturbation. Cunningham asked her not to tell her mother about the
incident. He then left the room and she went downstairs to shower. While she was in the
shower, she felt someone watching her, looked out of the shower, and saw her father
crawling along the floor toward the shower. She yelled at him, to which Cunningham replied,
“Sorry, sorry, sorry,” and ran upstairs.
¶5 A few days later, Natalie told her older sister, Vanessa, about the incident. Vanessa told
Natalie that she had been “worried that it would happen to [Natalie] because it had happened
to [Vanessa].” They told their mother about the incident and the three of them confronted
Cunningham, who admitted to touching Natalie after initially denying the incident. He said,
“so what if I did?” As the confrontation continued, Cunningham eventually said he did not
know why he committed the acts or what was wrong with him but promised not to do it
again. Natalie was unaware of any subsequent incidents. Natalie explained that she waited
10 years to report the incident because she had learned to trust her father again. However, she
and her family had temporarily moved into her parents’ home. Cunningham wanted to take
her five-year-old daughter to the park and did not want Natalie to accompany them. She was
concerned that Cunningham had not resolved his sexual issues, stating she “didn’t see a
whole lot of repentance on his part.” On cross-examination, she acknowledged that while
staying at her parents, she and her husband had been investigated by the Department of
Children and Family Services (DCFS) based on a complaint made by her parents who alleged
that Natalie improperly disciplined her children. The allegation was deemed unfounded after
a DCFS home visit. Natalie’s family subsequently moved out of her parents’ home and her
relationship with her parents remained strained. Nevertheless, her parents continued to visit
Natalie and her family at their new out-of-state home.
¶6 Natalie identified the compact disc (CD) with the two recorded conversations she had
with her father, which was admitted into evidence. Her mother participated in the second
conversation along with her father. During the conversations, Cunningham never explicitly
admitted abusing his daughter. He did admit that he attempted to improperly touch Natalie
but she stopped him. The recordings of the overhear conversations were played and the State
rested. The defense moved for a directed verdict, which the trial court denied. The trial court
stated that Natalie’s testimony was detailed, noting that she admitted to the DCFS

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 investigation and the potential bias she had as to her parents. While the strained family
relationship may have prompted Natalie to come forward after 10 years, in the trial court’s
opinion, it did not detract from her credibility when combined with the evidence from the
overhear. The trial court described much of the recorded conversation as ambiguous and
stated that there was no admission from Cunningham as to specific behavior of touching
Natalie’s vagina “but there certainly [was] some strong implication.”
¶7 Terri Cunningham testified for the defense. She was the defendant’s wife and Natalie’s
mother. She recalled a time in the summer or fall of 1998 when the family had a discussion
concerning her husband’s physical contact with their daughters. Her two daughters had told
her that they were uncomfortable during some of the leg massages their father gave them.
Natalie never said that Cunningham touched her vagina or that he tried to “masturbate” her.
During the family discussion, her husband never admitted to inappropriate touching,
although he did admit to having unwanted lust for his daughters. She participated in the
second taped phone conversation between her husband and Natalie as recorded with the
overhear and agreed that her husband said, “I never even touched you; at one time I
attempted to and you stopped me and that was the extent of it.” Terri denied that her husband
tried to inappropriately touch Natalie, and despite his admission as captured on the recording,
stated, “that’s what he knew she believed and he was appeasing her.” She also denied hearing
Cunningham make any incriminating statements on the recordings.
¶8 Vanessa Kolb, Natalie’s sister and Terri and Cunningham’s daughter, testified for her
father. She recalled that in the summer of 1998, Natalie told her she was uncomfortable with
their father’s massages. At that time, Natalie denied being touched inappropriately by
Cunningham. They expressed their concerns to their mother to whom Natalie said only that
she was uncomfortable with the massages. The three of them confronted Cunningham, who
never admitted that he had touched or tried to touch any of Natalie’s sexual organs. Her
father apologized for making his daughters uncomfortable. He did not state that he had
lustful thoughts about them. Kolb described the relationship with her father as close but not
sexual.
¶9 Following the close of evidence, the trial court found Cunningham guilty of both counts
of aggravated criminal sexual abuse. At a subsequent sentencing hearing, the trial court
sentenced Cunningham to a term of probation of 48 months and 3 days in the county jail.
Cunningham filed a motion for a new trial, arguing in part that trial counsel was ineffective
for failing to object to the admission of the overhear CD and for failing to challenge the
validity of the overhear based on improper procedure used in obtaining it. Cunningham’s
motion was heard and denied. He appealed.
¶ 10 After Cunningham had filed his original brief on appeal, the State asked this court to
order the Whiteside County clerk’s office to supplement the record with any documents and
transcripts relating to the overhear application. The State’s motion was granted, and the
record on appeal was supplemented with an application and complaint for an overhear;
Natalie’s written consent to the overhear; the trial court’s May 16, 2008, order granting the
overhear application; an order dated September 4, 2008, directing that the recording “shall
be sealed”; and notice on Cunningham served on October 7, 2008. Cunningham then sought
and was granted leave to file a supplemental brief.

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¶ 11 ANALYSIS
¶ 12 There are three issues on appeal: whether the trial judge erred when he failed to recuse
himself from conducting the trial because he had approved the overhear application; whether
the statutory requirements for an overhear were violated; and whether Cunningham was
denied effective assistance of counsel.
¶ 13 We begin with Cunningham’s contention that the trial judge erred when he failed to
recuse himself from conducting the bench trial. Cunningham contends that because the trial
judge had approved the overhear application, he had heard evidence and held a private
interview with Natalie and relied on the evidence obtained during that interview in
convicting him at the bench trial.
¶ 14 A trial judge is presumed to be impartial and the party challenging the judge’s
impartiality bears the burden to establish the judge’s prejudice. Eychaner v. Gross, 202 Ill.
2d 228, 280-81 (2002). In a bench trial, it is presumed the trial judge considered only
competent evidence in reaching a verdict. People v. Naylor, 229 Ill. 2d 584, 603 (2008).
However, the presumption may be rebutted where the record affirmatively demonstrates the
contrary. People v. Gilbert, 68 Ill. 2d 252, 258-59 (1977). A trial judge may not conduct
private investigations which produce evidence not presented at trial. Gilbert, 68 Ill. 2d at
259. A trial judge’s determination based on his private investigation or private knowledge,
untested by cross-examination or the rules of evidence, denies the defendant due process of
law. People v. Wallenberg, 24 Ill. 2d 350, 354 (1962).
¶ 15 A trial judge should disqualify himself where his or her impartiality may reasonably be
questioned, including where the judge has personal knowledge of disputed evidentiary facts
regarding the proceedings. Ill. S. Ct. R. 63(c) (eff. Dec. 5, 2003); People v. Kliner, 185 Ill.
2d 81, 169 (1998). Where a judge may have knowledge outside the record, he should recuse
himself. People v. Washington, 38 Ill. 2d 446, 451 (1967). Pretrial involvement by a judge
does not disqualify the judge from later presiding over the defendant’s trial. Withrow v.
Larkin, 421 U.S. 35, 56 (1975); People v. Harvey, 379 Ill. App. 3d 518, 523 (2008) (trial
judge’s prior rulings in a case will rarely form the basis of a recusal motion); People v.
Antoine, 335 Ill. App. 3d 562, 573 (2002) (judge’s issuance of search warrants insufficient
to trigger duty to recuse in subsequent trial); People v. Thomas, 199 Ill. App. 3d 79, 92
(1990) (trial judge not required to recuse himself due to prior ruling on defendant’s motion
to suppress). A trial judge’s decision whether to recuse himself based on prejudice against
the defendant will not be reversed absent an abuse of discretion. Kliner, 185 Ill. 2d at 169.
¶ 16 The record contains no evidence of ex parte communications or improper contacts by the
trial judge. Law enforcement submitted an application for an overhear and the trial court
heard evidence in support of the application, including the testimony of the investigating
officer. The victim, Natalie, consented to the recording. Contrary to Cunningham’s claims,
there is no evidence in the record that the trial court improperly engaged in ex parte
communications with Natalie or that she testified in support of the application. A trial
judge’s participation and rulings on pretrial matters does not require recusal or disqualify him
from presiding over the defendant’s subsequent trial. Cunningham offers only conjecture and

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 unsubstantiated assumptions that the trial judge’s impartiality was affected by his
participation in the overhear approval. We find that there is no evidence of partiality or need
for recusal.
¶ 17 We next consider whether the statutory requirements for an overhear were violated. As
a threshold matter, the State argues that Cunningham has waived this issue on appeal by
failing to object to the overhear procedure, application or recording at trial or to raise the
issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988) (to preserve issue
for appeal, it must be objected to at trial and raised in a posttrial motion). Cunningham
agreed to the admission of the overhear recording as a joint stipulation but did argue in his
posttrial motion, albeit within the framework of an ineffective assistance claim, that the
statutory overhear procedures were violated. He responds on appeal that he could not forfeit
the issue of the propriety of the overhear application and order because he did not know of
their existence. Cunningham asserts the State’s forfeiture argument dovetails into his
ineffective assistance argument and supports plain error review under the substantial rights
prong. People v. Bounds, 171 Ill. 2d 1, 41 (1995) (review appropriate under substantial rights
prong because the alleged error was so fundamental that defendant was denied a fair
proceeding). As discussed below, there was no error in the overhear application or post-
interception procedure. Accordingly, plain error review is not appropriate, and we find that
this issue is waived on appeal.
¶ 18 A second threshold matter is Cunningham’s claim that a Brady violation occurred when
the State did not timely provide him the overhear application and order. Cunningham did not
fully brief this argument and it is thus also waived on appeal. Ill. S. Ct. R. 341(h)(7) (eff.
Sept. 1, 2006) (points not argued are waived). Waiver notwithstanding, pursuant to Brady
v. Maryland, 373 U.S. 83, 87 (1963), the State is required to provide evidence favorable to
a defendant when the evidence is material either to guilt or punishment. As discussed below,
the State provided all material evidence to Cunningham. We find that there was no Brady
violation.
¶ 19 Turning to the substantive issues on appeal, Cunningham argues that evidence obtained
from the overhear should not have been admitted because the statutory requirements for an
overhear were not satisfied. He further argues that, as a consequence, any evidence obtained
from the overhear must be suppressed.
¶ 20 Section 108A-1 et seq. of the Code of Criminal Procedure of 1963 (Criminal Code) (725
ILCS 5/108A-1 et seq. (West 2008)) (hereinafter overhear statute) governs judicial
supervision of the use of eavesdropping devices. The procedure for obtaining an overhear
requires that an application be made in writing on oath or affirmation to a trial judge, and
include, in pertinent part:
“(1) the identity of the investigative or law enforcement officer making the
application and the State’s Attorney authorizing the application;
(2) a statement of the facts and circumstances relied upon by the applicant to justify
his belief that an order should be issued including: (a) details as to the felony that has
been, is being, or is about to be committed; (b) a description of the type of
communication sought to be monitored; (c) the identity of the party to the expected

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 conversation consenting to the use of an eavesdropping device; (d) the identity of the
person, if known, whose conversations are to be overheard by the eavesdropping device;
(3) a statement of the period of time for which the use of the device is to be
maintained ***;
(4) a statement of the existence of all previous applications ***.” 725 ILCS 5/108A-3
(West 2008).
¶ 21 The trial court may authorize an overhear where:
“(a) one party to the conversation has or will have consented to the use of the device;
(b) there is reasonable cause for believing that an individual is committing, has
committed, or is about to commit a felony under Illinois law; [and]
(c) there is reasonable cause for believing that particular conversations concerning
that felony offense will be obtained through such use[.]” 725 ILCS 5/108A-4 (West
2008).
¶ 22 “Because Illinois citizens are entitled to be safeguarded from unnecessary governmental
surveillance and other unreasonable intrusions into their privacy,” the overhear statute must
be strictly construed. People v. Bockman, 328 Ill. App. 3d 384, 388 (2002). However, not all
statutory violations require that evidence from the recordings be suppressed. People v. Ellis,
122 Ill. App. 3d 900, 904 (1984). Suppression is only required where there is a failure to
satisfy any of the statutory requirements that directly and substantially implement the
legislative intent to limit the use of overhears. Ellis, 122 Ill. App. 3d at 904. The test is
whether (1) the particular safeguard is a central safeguard in the legislative scheme to prevent
abuses; (2) the purpose the particular procedure was designed to accomplish has been
satisfied in spite of the error; and (3) the statutory requirement was deliberately ignored and,
if so, whether the government gained a tactical advantage. People v. Nieves, 92 Ill. 2d 452,
458-59 (1982). We will not reverse a trial court’s approval of an overhear application unless
it is manifestly erroneous. People v. Calgaro, 348 Ill. App. 3d 297, 300 (2004). Statutory
construction is an issue of law this court reviews de novo. People v. Johnson, 334 Ill. App.
3d 666, 672 (2002).
¶ 23 Cunningham asserts as the first procedural defect that the trial court failed to promptly
seal the recordings and that the failure prejudiced him. He notes that the overhear application
was granted on May 16 and expired on June 14, that the trial court’s order to seal the
recordings was dated September 4, and that the seal order was filed September 18.
Cunningham asserts that these dates demonstrate that the overhear statute’s immediacy
requirement was not satisfied. He further asserts that the trial court did not determine that the
recordings complied with the application, which, along with the failure to timely seal them,
makes the recordings inherently unreliable.
¶ 24 The overhear statute provides that the contents of the overheard conversation be recorded
and that “[i]mmediately after the expiration of the period of the order *** all such recordings
shall be made available to the judge issuing the order.” 725 ILCS 5/108A-7(b) (West 2008).
Section 108A-7 also requires that the trial court listen to the tapes, determine whether the
recordings are within the overhear order, and “make a record of such determination to be
retained with the tapes.” 725 ILCS 5/108A-7(b) (West 2008). The recordings are to be sealed

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 and kept under the trial court’s order and instruction. 725 ILCS 5/108A-7(b) (West 2008).
The presence of the seal or its explained absence “shall be a prerequisite for the use or
disclosure of the contents of the recordings or any evidence derived therefrom.” 725 ILCS
5/108A-7(b) (West 2008). The statute further requires that all overhear applications and
orders be sealed and kept in custody pursuant to the trial court’s directions and disclosed only
upon a showing of good cause before a judge. 725 ILCS 5/108A-7(c) (West 2008). The
statute’s immediate sealing requirement is a primary safeguard in the legislative scheme and
the requirement’s function is to preserve the integrity of the recorded conversations and to
prevent tampering or editing of the tapes. Nieves, 92 Ill. 2d at 459.
¶ 25 Cunningham’s claim that the trial court did not determine that the overhear complied
with the application and thus failed to meet the statute’s requirements is contradicted by the
record. The September 4, 2008, order which directed that the recording be sealed states that
the court “determined that the conversations were within the Court’s Order.” At a hearing
on Cunningham’s motion for a new trial, the trial court, while acknowledging that it did not
have independent recollection of its approval of the overhear, stated it “would have reviewed
the audio of the conversation prior to or when it was returned to make sure that it was in
compliance with the application.” Moreover, because the parties jointly stipulated to the
admission of the recordings, Cunningham cannot now complain about their admissibility.
People v. Calvert, 326 Ill. App. 3d 414, 419 (2001) (parties who agree to admission of
evidence through a stipulation cannot later complain about the evidence’s admission into
evidence). Additionally, the record demonstrates that Cunningham relied on the overhear as
part of his defense, specifically his denial on the overhear that anything criminal occurred in
his relationship with Natalie. He asserted during trial that the overhear recording was
exculpatory.
¶ 26 As noted by the State, there is no time limit in the overhear statute as to when the tapes
must be sealed. Cunningham’s interpretation of the immediacy requirement was rejected in
People v. Seehausen, 193 Ill. App. 3d 754, 763 (1990), where the reviewing court determined
that the immediacy requirement refers to the immediate return of the recordings to the court,
not to the trial court’s review or sealing of the recordings. The immediacy requirement is
designed to prevent tampering with the recordings and to preserve their integrity. Seehausen,
193 Ill. App. 3d at 764. Here, there is no indication that any tampering occurred and
Cunningham does not challenge the integrity of the recordings. At trial, the recordings were
admitted as a joint stipulation and Natalie testified without objection that the recordings
accurately reflected her conversations with Cunningham. The record indicates that the trial
court sealed the overhear on September 4, 2008, but does not establish when the overhear
was presented to the trial court after the application expired in June 2008. As appellant, it is
Cunningham’s burden to provide a complete record on appeal. Foutch v. O’Bryant, 99 Ill.
2d 389, 391 (1984). Because the record does not include the date the recordings were
presented to the trial court, this court must presume that submission was timely. Foutch, 99
Ill. 2d at 391-92 (in absence of sufficient record on appeal, reviewing court presumes trial
court’s order was in conformity with the law and had an adequate factual basis).
¶ 27 Cunningham also complains that the State violated section 108A-8 of the overhear statute
by failing to timely provide him with notice of the overhear within 90 days after the overhear

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 order expired and failing to timely provide him notice within 10 days of trial.
¶ 28 The overhear statute requires notice to parties overheard and provides:
“(a) [w]ithin a reasonable time, but *** not later than 90 days after the termination of the
period of an order ***, the issuing *** judge shall cause to be served on the persons
named in the order or application and such other persons in the recorded conversation as
the judge may determine that justice requires be notified, a notice of the transaction
involving any requested or completed use of an eavesdropping device which shall
include:
(1) notice of the entry of an order ***;
(2) the date of the entry ***;
(3) the period of the authorized use of any eavesdropping device; and
(4) notice of whether during the period of eavesdropping devices were or were not
used to overhear and record various conversations and whether or not such conversations
are recorded.
On an ex parte showing of good cause, the notice required by this subsection may be
postponed.
(b) Upon the filing of a motion, the judge may in his discretion make available to
such person or his attorney for inspection such portions of the recorded conversations or
the applications and orders as the judge determines it would be in the interest of justice
to make available.
(c) The contents of any recorded conversation or evidence derived therefrom shall not
be received in evidence or otherwise disclosed in any trial, hearing, or other judicial or
administrative proceeding unless each party not less than 10 days before such a
proceeding has been furnished with a copy of the court order and accompanying
application under which the recording was authorized or approved and has had an
opportunity to examine the portion of the tapes to be introduced or relied upon. Such 10[-
]day period may be waived by the judge if he finds that it was not possible to furnish the
party with such information within the stated period and that the party will not be
materially prejudiced by the delay in receiving such information.” 725 ILCS 5/108A-8
(West 2008).
The notice requirement of section 108A-8(a) of the Criminal Code (725 ILCS 5/108A-8(a)
(West 2008)) is satisfied when the State gives notice to a defendant pursuant to discovery
procedures. People v. Bradley, 406 Ill. App. 3d 1030, 1039 (2011).
¶ 29 On June 24, 2008, the State provided discovery to Cunningham which included a
transcript of the electronic surveillance and 50 “police reports and other documents.” The
“other documents” are not part of the record on appeal. The State asserts that the attached
documentation included a copy of the overhear application and order. Supplemental
discovery was provided to Cunningham on July 15, 2008, and included a CD of the overhear.
Without a record of the attached documents from the June disclosure, this court must
presume that the documents were properly attached, including the overhear application and
order. Notwithstanding the presumption of propriety, we find that the notice requirement was

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 satisfied by the State’s timely discovery disclosure to Cunningham. Because the reasoning,
safeguards and purpose of notice were satisfied through discovery, and there is no indication
the State gained a tactical advantage, the State’s lack of exact compliance with the statute’s
notice requirements do not require suppression. People v. Stewart, 343 Ill. App. 3d 963, 976
(2003).
¶ 30 The last issue on appeal is whether Cunningham was denied effective assistance of
counsel. Cunningham asserts that his trial counsel provided him ineffective assistance where
he failed to file a motion for substitution of judge and did not challenge the overhear which
Cunningham claims did not comply with the statutory requirements.
¶ 31 To establish ineffective assistance of counsel, a defendant must demonstrate that
counsel’s representation was objectively unreasonable and, but for counsel’s errors, there was
a reasonable probability that the outcome of the trial would have been different. Strickland
v. Washington, 466 U.S. 668, 694 (1984). A defendant must satisfy both prongs of the
Strickland test, and failure to satisfy either prong precludes a finding of ineffective
assistance. People v. Milton, 354 Ill. App. 3d 283, 289 (2004). Matters of trial strategy or
tactics are not proper areas of inquiry into claims of ineffective assistance and a defendant
must overcome a strong presumption in favor of a finding that counsel’s advocacy was
effective. People v. Centeno, 394 Ill. App. 3d 710, 713 (2009). In deciding whether counsel
provided ineffective assistance, this court employs a bifurcated standard of review, deferring
to the trial court’s findings of fact unless they are against the manifest weight of the evidence
and considering de novo the ultimate legal issue of whether counsel’s omission supports an
ineffective assistance claim. People v. Manoharan, 394 Ill. App. 3d 762, 769 (2009).
¶ 32 As discussed above, there is no merit to Cunningham’s claims that the trial judge should
have recused himself or that the statutory requirements for an overhear were not substantially
satisfied. He was provided the overhear documents and CD prior to trial and was not
prejudiced by counsel’s actions. Thus, Cunningham is unable to satisfy either Strickland
prong. We find that he did not receive ineffective assistance of counsel.
¶ 33 For the foregoing reasons, the circuit court of Whiteside County is affirmed.

¶ 34 Affirmed.

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