dissenting:
I dissent because I believe defendant has established that he was denied fundamental due process of law. I would reverse for two reasons: the record indicates that defense counsel’s representation of defendant did not meet an objective standard of reasonableness, resulting in prejudice to defendant; I also dissent because the record reflects that the trial judge relied on his personal beliefs, which had no basis in the evidence, in assessing the credibility of L.K., the victim of the alleged abuse in this case. For these reasons, I would reverse and remand for a new trial.
I
To prove ineffective assistance of counsel, a defendant must establish the two-part showing set forth in Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052. The record must indicate that defense counsel’s performance was so deficient as to fall below an objective standard of reasonableness, depriving defendant of a fair trial; defendant must also demonstrate that there is a reasonable probability that but for his counsel’s deficient performance, the outcome of the trial would have been different. In People v. Davis (1990), 203 Ill. App. 3d 129, 141, "reasonable probability” was defined as "probability sufficient to undermine confidence in the outcome.” (Accord People v. Albanese (1984), 104 Ill. 2d 504.) Under the facts in this case, there is a reasonable probability that defense counsel’s inadequate performance materially affected the outcome of the case.
With respect to defense counsel’s performance in the instant case, the trial judge stated that he " 'felt uncomfortable with some of the strategy used.’ ” The majority of this court states, "Defense counsel’s performance was certainly questionable.” (159 Ill. 2d at 445.) However, the majority concludes that defendant was not prejudiced by his counsel’s performance because his counsel’s "strategies” did not affect the judge’s decision, which was "based primarily on L.K.’s testimony.” 159 Ill. 2d at 445.
My conclusion that defendant, in the case at bar, was deprived of the effective assistance of counsel is based on the following: defense counsel failed to raise a speedy-trial issue, defense counsel failed to challenge the foundation of expert opinion, defense counsel failed to challenge videotaped hearsay evidence, and defense counsel failed to adequately investigate and prepare for trial. This dissent treats those issues in the stated order.
Defendant was arrested on August 4, 1989, and charged by information with a single count of aggravated criminal sexual assault. He was unable to post bond and remained in custody throughout the pretrial period. Consequently, defendant had a statutory speedy-trial right to be tried within 120 days, unless he caused or contributed to delays in trial. (Ill. Rev. Stat. 1991, ch. 38, par. 103 — 5(a); People v. Morris (1954), 3 Ill. 2d 437.) Defendant’s attorney requested one continuance. The trial began on December 12, 1989, which was within the 120-day speedy-trial period because of the continuance. However, defense counsel did not object to the filing of two additional felony counts that the State added to the information on the day of trial. Under Illinois precedent, the two late-added counts were vulnerable to a challenge based on the running of the speedy-trial period. The defendant’s agreement to a continuance of trial on the original charge does not extend to additional counts that are added after the date of the continuance. In People v. Alcazar (1988), 173 Ill. App. 3d 344, defendant’s conviction was reversed upon a finding that defense counsel was ineffective for failing to make a speedy-trial challenge to the late-filed charge. (Accord People v. Hawkins (1991), 212 Ill. App. 3d 973.) Based on these authorities, defense counsel should have objected to the State’s filing of the two additional felony charges on the day of trial; the trial court likely would have dismissed those charges as violative of defendant’s right to speedy trial under section 103 — 5(a).
Kae Ecklebarger, a social worker with the El Paso department of social services, testified in the State’s case in chief. In Ecklebarger’s opinion, L.K.’s reactions and behavior fit within an undefined "accommodation syndrome,” which she considered integral to the "post-traumatic stress syndrome.” Ecklebarger’s opinion was that L.K. suffered several symptoms of post-traumatic stress syndrome caused by sexual assault. These symptoms included a pattern of delayed disclosure of the sexual abuses and "disassociation” from negative experiences similar to a mental state "first noted with Viet Nam vets.” Ecklebarger’s expertise was based on a one-day seminar dealing with post-traumatic stress syndrome, which she attended after her participation in the interviews of L.K.
Defense counsel did not move to disqualify Ecklebarger as an expert witness. He did not cross-examine her regarding her stated qualifications to render an opinion on the post-traumatic stress syndrome or accommodation syndrome. Instead, defense counsel elicited additional details of L.K.’s behavior from which Ecklebarger inferred in her testimony that L.K. had been sexually assaulted. Under cross-examination Ecklebarger stated that she had spoken with L.K.’s mother, Rita, and Rita’s companion, Bernie, on several occasions about their concern that L.K. was exhibiting what they felt was "provocative” behavior.
Following this line of questioning, defendant’s counsel elicited an admission from Ecklebarger that high levels of stress in a child might have causes other than sexual abuse, but Ecklebarger stated that "sexual behavior [in a child] is not generally seen due to physical abuse or neglect.” The implication of this opinion was that the psychological stress and the behaviors L.K. was exhibiting were caused by her father’s sexual abuse rather than other factors, such as physical harm or negleet by the mother. However, the example Ecklebarger cited of L.K.’s supposedly sexualized behavior consisted of L.K.’s walking into the bathroom or bedroom to look while her mother or Bernie showered or changed clothes. "Whether such behavior could have been normal curiosity of a child rather than something more sinister was not questioned by defense counsel.
It should be noted that a written report in the record reveals that L.K. had been removed from her mother’s home in August 1989. Other references in the transcript suggest that Rita had been charged with physically abusing L.K. At the time of trial, L.K. was in foster care and undergoing therapy.
The record indicates that L.K. had endured, in a period of a few months, the hostile divorce of her parents; her mother’s failure to take L.K. with her when her mother went to Colorado to live with Bernie; the move from a house she had lived in all or most of her life to a trailer shared with her father and three brothers; the move out to Colorado; and pervasive and repeated interrogation by several people about her father’s sexual abuse of her. In light of these factors, the issue of L.K.’s distress and behavioral disorders arguably should have been subjected to scrutiny by defense-retained experts.
Unlike the majority, I cannot presume that the trial court was not affected by the unchallenged opinion of Ecklebarger, the State’s expert witness. Nor can I discard the significance of Ecklebarger’s testimony with respect to the issue of defendant’s right to effective assistance of counsel. Defense counsel did not challenge Eckelbarger’s qualifications to render an opinion regarding “syndrome” evidence, nor did he secure an expert in child psychology to assist the defense. As one court has noted, cases involving sexual abuse against children raise particular difficulties and “[cjonsequently, prior to admission, expert testimony must be tested and shown to be beneficial to the trier of fact with a minimum of prejudice to the defendant.” (People v. Server (1986), 148 Ill. App. 3d 888, 898.) The party who offers a witness as an expert bears the burden of establishing his or her qualifications (People v. Park (1978), 72 Ill. 2d 203) and "[t]he degree and manner of knowledge and experience required of an expert is directly related to the complexity of the subject matter and the corresponding likelihood of error by one insufficiently familiar therewith” (Server, 148 Ill. App. 3d at 899, citing Park, 72 Ill. 2d at 209-10).
I do not believe that the State established a proper foundation for its expert’s opinion. (Cf. People v. Pollard (1992), 225 Ill. App. 3d 970, 976-77 (holding that proper foundation existed for qualified expert’s testimony regarding "child sexual abuse accommodation syndrome” where expert had extensive training and experience with sexually abused children, expert testified regarding the characteristics of the syndrome and its recognition by specific agencies, and defense counsel rigorously cross-examined witness concerning the basis of her knowledge of the victim’s conduct).) In the instant case, defense counsel did not adequately challenge Ecklebarger’s qualifications or the bases for Ecklebarger’s opinion. Instead, he elicited from Ecklebarger prejudicial hearsay statements, attributed to Rita and Bernie, from which Ecklebarger concluded, without explanation, that L.K. was exhibiting sexually provocative behavior characteristic of abuse.
The prejudice to defendant was exacerbated in this case when the State’s rebuttal witness, Dr. Monteleone, gave additional opinion evidence. Monteleone, a pediatrician, examined L.K. in October 1989, approximately eight months after she had left her father’s home and two months after she left her mother’s home. Monteleone testified that in his opinion there were strong physical indicators that L.K. had been sexually abused and penetrated. The State called Monteleone to rebut defense evidence that damage to L.K.’s hymen might have been caused from an injury she had sustained in a bicycle accident. On direct examination, Monteleone discredited the bicycle theory as the cause of damage to L.K.’s hymen.
During cross-examination, defense counsel asked Monteleone a series of questions involving Monteleone’s reliance on "behavioral indicators” to support his conclusion of sexual abuse. The State objected to Monteleone’s rendering an opinion on behavioral indicators on the ground he had not been qualified as an expert to give such an opinion. The court overruled the objection. Monteleone testified that his knowledge of the behavioral indicators, which he admitted he "got from the report” (unidentified in the record), included L.K.’s poor performance in school, emotional problems, and the ability to describe very intimate sexual activity.
This testimony, which can only be viewed as damaging to the defendant, was elicited by his own counsel. Defense counsel’s purpose may have been to ascertain whether the witness would alter his opinion if he knew that L.K.’s behavior appeared normal at the time she left her father in February 1989. Testimony from L.K.’s fourth grade teacher indicated that just before L.K. left Illinois to live in Colorado she was maintaining good grades and was a "very enthusiastic child, *** talkative, kind, sharing.” Monteleone responded to defense counsel’s inquiry by stating that it was not possible to "time trauma or reaction to a trauma by how they are behaving at the time.”
Monteleone’s opinion regarding L.K.’s "post-traumatic” behavior appears to be based in large part on the unexamined, hearsay reports of unidentified third parties; moreover, this opinion was elicited by defense counsel. Like the opinion of Ecklebarger, the opinion of Monteleone appears to rest on a questionable foundation. In this instance, defense counsel’s “strategy” — to elicit a favorable opinion from the State’s witness — backfired. Again, defendant was prejudiced by his counsel’s failure to secure expert assistance in the preparation of his case.
Without objection from defense counsel, the State presented in court two lengthy videotapes of L.K.’s interviews in Colorado. For the reasons that follow, I believe the admission of the tapes into evidence constituted another instance of counsel’s ineffective assistance which resulted in prejudicial error.
Cecilia Rumney, a youth and victim’s counselor employed by the Colorado Springs police department, interviewed L.K. on June 7, 1989, and again on July 13, 1989, in videotaped sessions. Rumney’s testimony at trial was offered primarily to lay the foundation for the admission of the videotapes by authenticating them and describing the procedures used by her department in interviewing possible victims of sexual abuse. The State moved for the admission of the videotapes pursuant to section 115 — 10 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 115 — 10), a hearsay exception that allows persons to whom the child victim of sexual abuse has reported the abuse to testify at trial. This provision requires the trial court to make a threshold reliability determination by considering, at a hearing outside the jury’s presence, the “time, content, and circumstances” under which the statement was made. However, it has been held reversible error to permit witnesses to whom the child complained to testify in extensive detail concerning the descriptions of the acts and conversations with the victims. E.g., People v. Holveck (1990), 141 Ill. 2d 84, 103-04.
In the instant case, Rumney’s testimony that L.K. reported instances of sexual contact and penetration was properly admitted at trial as corroboration that L.K. had reported the abuse. However, there appears to be no justification for supplementing Rumney’s and L.K.’s trial testimony with the entirety of the videotaped interviews. Section 115 — 10 does not authorize the admission at trial of videotaped investigation or interviews conducted by law enforcement or child advocacy departments. The videotapes do not lose their character as hearsay by operation of section 115 — 10. The State offered the tapes, which clearly constitute out-of-court statements intended to prove the truth of the matter asserted, and defendant was not able to cross-examine the declarant or object to the sometimes leading nature of the questions. See People v. Mitchell (1992), 225 Ill. App. 3d 708, 716-19; see also People v. Velasco (1991), 216 Ill. App. 3d 578, 583-85 (rejecting State’s attempts to justify its use of videotaped interview of victim at trial).
This court has held unconstitutional a separate statutory procedure, a “child shield law” which expressly permitted the use of videotaped evidence of child sexual abuse, under more stringent safeguards than present in connection with the videotapes in the instant case. In People v. Bastien (1989), 129 Ill. 2d 64, this court held that section 106A — 2 of the Code of Criminal Procedure was constitutionally infirm because it authorized the videotaping of the child sexual abuse victim’s oral statement or testimony but prohibited contemporaneous cross-examination (although defense counsel was permitted to make objections) and infringed on the accused’s right of confrontation. See also People v. Fitzpatrick (1994), 158 Ill. 2d 360, in which this court recently held unconstitutional another child shield law, section 106B — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1991, ch. 38, par. 106B — 1). In Fitzpatrick, we held that the use of a closed circuit televised proceeding, in which the child’s testimony would be taken outside the presence of the defendant, violated the accused’s right of confrontation under the Illinois Constitution, which expressly entitles the defendant to meet the witness "face to face.”
Bastien and Fitzpatrick suggest that the State’s use of L.K.’s videotaped interviews in the instant case was improper and prejudicial to defendant. L.K. testified in court regarding the abuse and Rumney testified that L.K. reported such abuse to her. By also submitting the videotaped sessions in toto, the State enjoyed the advantage of having L.K. "testify” twice; once in the courtroom, under oath and subject to contemporaneous cross-examination, and then again in the form of the lengthy, open-ended format of the Colorado Springs police department’s interviews. L.K.’s unsworn statements in the interview were the product of sometimes leading questions, which were not subject to objection or contemporaneous cross-examination. The videotapes added nothing of substance to the trial testimony, but injected a layer of cumulative and repetitive details that were not elicited in accordance with courtroom procedure. Defense counsel should have challenged their use at trial.
There were other significant shortcomings in defense counsel’s representation of defendant. In a pretrial motion defense counsel moved the court to issue an order for L.K.’s mother, Rita Emig, to be taken into custody in Colorado and delivered to Illinois as a material witness for the trial on December 12. The judge suggested defense counsel first try to contact Rita’s lawyer informally, to seek her voluntary appearance, but the court also assured counsel he would issue the order if Rita refused to appear. Inexplicably, defense counsel never sought the entry of such order.
As noted, Kae Ecklebarger, the State’s expert witness, based her opinion in part on Rita’s hearsay statements concerning L.K.’s behavior. Defense counsel did not move to suppress Rita’s hearsay statements or otherwise object to their use against his client.
Finally, the record contains defendant’s handwritten letter to the clerk of the court following his conviction, in which he set forth specific reasons he believed his attorney had failed to adequately represent him. In this letter, defendant listed the following witnesses he believed should have been called to testify: his sister-in-law; two counselors from the "Community Resource Center”; one from Kaskaskia college; a social worker from Children’s Hospital in St. Louis; and George Zollner, from the Illinois DCFS, who had interviewed defendant in connection with the initial charges of sexual abuse that defendant’s ex-wife, Rita, instituted against defendant (the initial complaint was determined to be unfounded). Further, defendant’s letter claims that he did not see all of the videotaped evidence until the day of trial and that his lawyer should have filed a motion to suppress. Other points listed in defendant’s letter suggest a concern that his counsel "had not handled this type of case before” and "didn’t get help” and that his counsel did not know who the State’s witnesses were.
In support of its holding, the majority focuses exclusively on the evidence of defendant’s guilt, rather than on the showing that trial counsel’s ineptness prevented defendant from receiving a fair trial. In so doing, the majority finds that selected portions of the evidence "overwhelmingly inculpated defendant.” (159 Ill. 2d at 446.) I disagree that the evidence presented in this case was overwhelming and I believe that the majority’s focus on selected portions of the evidence is too narrow. (See People v. Dillard (1990), 204 Ill. App. 3d 7, 10 (whether defense counsel’s failure to investigate is ineffective assistance depends on the value of the evidence that was not presented and the closeness of the evidence that was); People v. Garza (1989), 180 Ill. App. 3d 263 (granting new trial where evidence was closely balanced and defense counsel failed to present alibi witnesses and to elicit inconsistencies in the testimony of the State’s sole eyewitness who linked defendant to the crime).) We cannot be certain that the result would not have been different if defendant’s trial counsel had fully investigated the facts, obtained the assistance of experts, and presented material witnesses. Therefore, under established Illinois law, defendant is entitled to a new trial because the State’s evidence was not subjected to meaningful testing. People v. Gunartt (1991), 218 Ill. App. 3d 752 (reversing conviction on grounds of ineffective assistance where counsel failed to obtain material evidence, failed to request a continuance to review key medical records tendered by the State on the day of trial, and failed to move for the exclusion of harmful evidence or to challenge the competency of the minor victim and her brother); People v. Corder (1982), 103 Ill. App. 3d 434 (counsel’s failure to interview witnesses and present evidence required new trial); People v. Baldwin (1989), 185 Ill. App. 3d 1079 (defense counsel’s failure to investigate possible defense of insanity by reviewing psychiatric records required new trial).
In People v. Bell (1987), 152 Ill. App. 3d 1007, the court reversed the defendant’s double-murder conviction and remanded for a new trial because of the cumulative impact of defense counsel’s failings. Defense counsel’s deficiencies included counsel’s failure to move for the suppression of the defendant’s confession on grounds of involuntariness, failure to object to the introduction of certain evidence, and failure to investigate or call witnesses who could testify regarding the victim’s propensity for violence and aggression toward the defendant. Defense counsel testified at a post-trial hearing that he did not call witnesses who had knowledge of the victim’s violent history because of counsel’s belief that their testimony would have conflicted with defendant’s theory of self-defense. The court rejected counsel’s trial strategy explanation and observed that defense counsel could not evaluate the worth of the witnesses’ testimony without thoroughly interviewing all of the potential witnesses about the events leading up to the murders.
In the instant case, defense counsel could not have properly assessed his client’s defense without investigating the role of Rita and Bernie in influencing L.K.’s statements to the authorities in Colorado. A thorough investigation of the charges would entail an independent analysis of the two previous investigations and interviews of potential defense witnesses, including experts.
The United State Supreme Court has observed, "In an adversary system of criminal justice, there is no right more essential than the right to the assistance of counsel.” (Lakeside v. Oregon (1978), 435 U.S. 333, 341, 55 L. Ed. 2d 319, 326, 98 S. Ct. 1091, 1096. See also People v. Lee (1989), 185 Ill. App. 3d 420 (reviewing history of sixth amendment right).) In Lee, the appellate court reversed the defendant’s conviction of murder based on arson and remanded the case for a new trial because defense counsel failed to render effective assistance at trial. The court quoted from a law review article written by Justice Bazelon:
" 'In warning that the sixth amendment guarantee of effective assistance of counsel is in danger of becoming a dead letter in the courts of our major urban jurisdictions, I have concentrated on the problem at the trial level, but the appellate courts must share the responsibility. One of the major reasons that the problem of ineffective assistance has remained hidden is the appellate court’s remarkable propensity to ignore the issue of ineffective assistance of counsel altogether and to paper over the cracks in the house that Gideon built.’ 42 [U.] Cin. L. Rev. [1,] 20-21 [1973].” Lee, 185 Ill. App. 3d at 448.
II
Notwithstanding the errors of counsel, the majority upholds the trial court’s conviction, on the speculative ground that "[r]emoving the questionable portions of the trial would not have changed the decision. Thus, the defendant was not prejudiced. *** There is a presumption that a trial judge will consider only relevant, competent evidence. [Citation.] Thus, to the extent that irrelevant or incompetent evidence was inappropriately received, we presume that the trial judge disregarded it.” 159 Ill. 2d at 446.
The presumption that the trial judge in this case only considered proper evidence is rebutted by the judge’s express comments, repeated by him at least three times, that L.K. could not have made up any part of her testimony regarding the sexual abuse because nine-year-old girls do not know of such matters. (See People v. Gilbert (1977), 68 Ill. 2d 252, 258-59.) The judge’s confidence that L.K. was telling the truth was based on his belief that there "is no way” girls of her age could "come up with that type of evidence unless indeed it happened.” Personal assumptions regarding children’s veracity, experience, and psychology — no matter how sincerely held — cannot substitute in a court of law for testimony subject to the rules of evidence and other procedural safeguards. Reviewing courts have a duty to ensure that the trial judge’s rulings are not tainted by reliance on untrustworthy evidence or personal beliefs. E.g., People v. Alford (1982), 111 Ill. App. 3d 741 (reversing where court’s comments indicated it considered incompetent evidence); People v. Bolyard (1975), 61 Ill. 2d 583 (reversing for new sentencing hearing because of the court’s statements that sexual abuse of a child was the most sinful and reprehensible of crimes).
A Michigan appellate court noted, in a case involving repeat criminal offenders:
"The trial judge’s conclusion seems to be based on his own unsubstantiated personal view of a highly complex aspect of human psychology. The trial judge has simply concluded that an older person is more likely to be a repeat offender than a younger person. Before a sentencing judge can make such a conclusion, some scientific or psychological justification should be made part of the record and the defendant must be afforded the opportunity to challenge the court’s belief ***.” People v. McKernan (1990), 185 Mich. App. 780, 782-83, 462 N.W.2d 843, 844.
In the instant case, the trial judge apparently was influenced by his personal view of a highly complex aspect of human psychology. The record does not support a conclusion that children of L.K.’s age lack knowledge of sexual matters.
The central issue in this case is whether defendant had effective legal assistance in challenging the State’s evidence and whether the trial judge relied on improper matters — either his own biases or incompetent evidence. I believe it is incumbent upon this court to acknowledge the significance of competent expert opinion, or the lack thereof, in trials involving sexual abuse of children.
On the critical issue of L.K.’s truthfulness and credibility, the trial court proclaimed that there was "no way” L.K. would testify against her father if the charges were untrue, "unless there was some reason. And there is absolutely no evidence of that.” (Emphasis added.) Contrary to the judge’s unequivocal statement, the record reflects a powerful motive, on the part of Rita, that could have led to L.K.’s fabrication or exaggeration of her accusations. Although the trial judge was free to believe L.K. and disbelieve defendant, the judge did not state that he was making a credibility determination as to defendant’s evidence of motive. Instead, the judge denied the existence of any evidence of record to suggest a reason to fabricate.
However, in May 1988, after an 18-year marriage, the parties divorced and Rita told defendant she was involved in a lesbian relationship with Bernie. Subsequently, Rita moved to Colorado to live with Bernie. Defendant, whose employment and income was limited, moved with the children from the family home to a trailer. Defendant and the three sons slept in the two bedrooms and L.K. slept on a couch in the living room. Although Rita was to take physical custody of L.K. in the summer of 1988, she did not do so and defendant enrolled L.K. in school.
According to defendant, Rita’s mother invited defendant and the children to her home for Christmas in 1988. While there, defendant disclosed his ex-wife’s living arrangements. In February 1989, when Rita learned that defendant had told her mother about her lesbian relationship, Rita threatened to "get even” with defendant and to "make him look bad” by accusing him of molesting their daughter. Shortly thereafter, Rita took L.K. to Colorado and initiated the first investigation into defendant’s alleged sexual misconduct. At about the same time, defendant filed for custody of L.K., in Illinois.
In response to Rita’s allegations, defendant was questioned by George Zollner, an investigator with the Illinois DCFS, and a police officer. According to defendant, Zollner asked him to take a lie detector test, which he took and passed. In Colorado, L.K. was examined by Dr. Kuper, who found physical evidence consistent with, but not conclusive of, sexual abuse. However, L.K. denied that her father had sexually abused her. Authorities notified defendant that the charges against him were considered "unfounded.”
The second investigation began a few months later, when Rita again notified authorities in Colorado and Illinois of L.K.’s accusations. During the time period between the two investigations, L.K. remained in Colorado with Rita and Bernie. As previously noted, the videotaped interviews that were part of this second investigation were admitted into evidence against defendant at his trial. The second videotape, in particular, suggests that L.K. might have been influenced at that time by Bernie, with whom she spoke about the abuse on a frequent basis and with whom she "joked” about the possibility of revenging herself on her father.
Although the trial judge determined that L.K. was truthful and credible at trial, the ultimate issue before this court is whether the judge’s conclusion was tainted by either his unsubstantiated personal beliefs or his reliance on incompetent evidence, caused in part by defense counsel’s inadequate performance. I cannot conclude, based on my review of the record, that the trial judge’s assessment of L.K.’s testimony was unaffected by personal views, the videotapes, and the untested opinion of Eckelbarger and Monteleone. Therefore, I cannot concur in the majority’s holding that the trial court presumably considered only the "competent” portions of the evidence. I also depart from the majority’s stated belief that the trial judge’s ruling was unaifected by trial counsel’s performance. In this case there was a near-total failure of the fundamental purpose of trial, which is to seek the truth of what happened within the framework of procedural due process.
JUSTICE FREEMAN joins in this dissent.