dissenting:
I dissent. Based upon my review of the record, I believe defendant was deprived of effective assistance of counsel and a fair trial.
This sordid situation appears to have its genesis in a bitter child custody dispute. Following a dissolution of their marriage in May of 1988, defendant took physical custody of his sons while defendant’s ex-wife, Rita, took custody of L.K. The following month, L.K. came to stay with defendant for the summer months. Sometime in August of 1988, Rita advised defendant she was unable to care for L.K., so defendant enrolled the child in a local grade school. Rita then moved to Colorado and resided in a lesbian relationship with a woman named Bernie. According to defendant, Rita had advised defendant that she was engaged in a lesbian relationship shortly before the dissolution of their marriage.
At some point thereafter, defendant advised Rita’s mother and other relatives of Rita’s lifestyle. According to defendant, Rita then contacted him and told him that she intended to get even with him for ruining her reputation and that she planned to bring sexual abuse charges against him. Defendant then contacted the Department of Children and Family Services (DCFS) and the local State’s Attorney in an attempt to obtain custody of L.K. but was advised to obtain private counsel. Unable to do so for financial reasons, defendant attempted to file for change of custody pro se.
In February 1989, Rita advised her mother that DCFS wanted her to pick up L.K. and deliver the child to Rita. The grandmother asked to visit the child and then turned the child over to Rita rather than returning the child to defendant. Rita took L.K. to Colorado. Shortly thereafter, an investigation was undertaken by DCFS with respect to allegations of sexual abuse by defendant. This investigation later concluded that the allegations were unfounded.
In June of 1989, abuse charges again surfaced. While in Colorado, Rita and Bernie took L.K. to a youth and victims counselor with a local police department where the videotaped interviews in question were made on June 7, 1989, and July 13, 1989. Colorado authorities then contacted DCFS in Illinois, and the instant charges were subsequently filed against defendant.
Copies of the videotaped interviews were admitted into evidence and viewed by the trial court. In the first tape, L.K. described various instances of sexual contact between defendant and herself. In the second tape, L.K. described additional acts of sexual contact between defendant and herself in more explicit detail and continued on to relate instances of sexual abuse involving an adult neighbor and her brothers, suggesting that the neighbor had paid defendant in order to engage in such sexual contact. L.K. also related another incident involving the neighbor and yet other children. In the second tape, L.K. also stated that she had talked with Bernie every day about these matters and they discussed the punishment defendant should receive such as placing defendant’s hands in a garbage disposal and turning it on. L.K. also related that after her discussions with Bernie she concluded her “brothers were prostitutes except they were boys.”
When the State moved to admit the tapes into evidence, the State’s Attorney advised the court that the second tape contained “irrelevant matters and matters to which L.K. had not testified.” The State’s Attorney then invited an objection by defense counsel and offered to redact those portions of the tape. No objection was interposed by defense counsel.
After both tapes were viewed by the trial court, the State introduced the testimony of Kae Ecklebarger, a Colorado social worker, who testified that L.K. suffers from post-traumatic stress syndrome. This opinion was based upon one interview with L.K., a review of the first videotaped interview, and conversations with Rita and Bernie. No objection to this testimony was made by defense counsel, nor did he object to or cross-examine concerning the qualifications of the witness even though she had only a bachelor’s degree in social work and her training with respect to post-traumatic stress syndrome recognition consisted of a one-day seminar and some unspecified training in “The Accommodation Syndrome,” which she testified was “part and parcel” of the post-traumatic stress syndrome. The State also elicited hearsay testimony without objection from this witness concerning what others had told her that L.K. had said to them, specifically Rita and Bernie, neither of whom testified. The State also called L.K.’s pediatrician, who testified concerning conversations with Rita prior to her examination of L.K. Again, no objection was interposed by defense counsel even though the witness testified not about L.K.’s allegations, but rather about what L.K.’s mother had told her. (In fact, L.K. initially denied any abuse during the pediatrician’s first examination.)
Although I recognize that claims of ineffective assistance of counsel will fail if counsel’s alleged incompetency arises out of a matter of trial tactics or strategy, I can perceive of no rational trial strategy which would dictate a decision not to move to suppress or object to the videotapes, particularly the second tape. The majority of this tape contains highly prejudicial and totally irrelevant material which, in my view, could only serve to severely prejudice the defendant. If indeed defense counsel initially had some tactic or trial strategy in mind, I can find no indication in the record that this tactic or strategy was ever utilized.
Equally inexplicable is the failure of defense counsel to question the qualifications of the State’s witness, Kae Ecklebarger, or to object to her opinion respecting syndrome evidence or to question the principles upon which her opinion was based and the extent of her experience with those principles.
With regard to defense counsel’s failure to object, to the hearsay testimony of the witnesses who testified as to what Rita told them of L.K.’s complaints, it appears clear to me that such testimony is not authorized by section 115 — 10(a)(2) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10(a)(2)) as the testimony was not a recitation of what L.K. had said, but rather what Rita and Bernie had said. Again I can see no rational trial strategy, only prejudice to the defendant. Even if the statements had been made by L.K., I would have difficulty finding them to possess sufficient safeguards of reliability given the circumstances and timing surrounding the same. See People v. Zwart (1992), 151 Ill. 2d 37, 600 N.E.2d 1169.
I fully realize that this case was not a trial by jury and that there is a presumption that a trial judge will consider only relevant, competent testimony. Nevertheless, I believe that defense counsel’s errors were so egregious that the State’s case was not subjected to meaningful adversarial testing, thereby depriving the defendant of a fair trial under the Strickland and Albanese standards. I would also note that even the trial judge expressed question and discomfort with defendant’s representation. While any one of counsel’s errors, standing alone, would arguably constitute ineffective assistanee of counsel and be sufficient grounds for reversal, I' have no doubt that the cumulative effect of these errors constituted ineffective assistance of counsel and denied defendant a fair trial. People v. Bell (1987), 152 Ill. App. 3d 1007, 505 N.E.2d 365.
Finally, I am unable to agree with the majority that the trial court’s “extraneous remarks” that children of L.K.’s age could not make false accusations of sexual abuse or testify against their fathers unless such acts indeed happened were not error. Even given the context in which the remarks were made, these conclusions are at best speculative and without foundation in the evidence. As such, I believe the trial court made impermissible conclusions based upon its personal beliefs. See People v. Johnson (1992), 237 Ill. App. 3d 860, 867-68, 605 N.E.2d 98, 104.