concurring in part and dissenting in part:
I concur in affirming the trial court’s factual findings. However, I must respectfully dissent from the majority’s determination that the bifurcation of the evidentiary hearing was erroneous. At the outset, the defendant’s contention that the trial court erred in bifurcating her evidentiary hearing has been forfeited for purposes of this appeal. Although the defendant stated in the opening paragraph of the argument section of her appellant’s brief that the trial court abused its discretion in bifurcating the evidentiary hearing, she did not develop this contention in the body of her argument. Bare contentions without argument and citation to authority do not merit consideration by a reviewing court and are deemed forfeited. People v. Dinger, 136 Ill. 2d 248, 254 (1990). The defendant did address the issue in her reply brief. However, Rule 341(h)(7) provides that “[pjoints not argued are waived and shall not be raised in the reply brief.” 210 Ill. 2d R. 341(h)(7). The majority points to one sentence indirectly addressing the issue in the defendant’s appellant’s brief. However, one sentence indirectly addressing the issue, supported by a mere string cite, and couched within 30 pages of other argument, is hardly sufficient to preserve the issue. Nonetheless, forfeiture is a limitation on the parties, and a reviewing court may override the forfeiture doctrine in the interest of justice. People v. Thornburg, 384 Ill. App. 3d 625, 634 (2008). The majority has elected to address the bifurcation argument. For the following reasons, I would grant the State’s petition for rehearing and affirm the trial court’s determination that the defendant was not deprived of her right to the effective assistance of counsel.
To establish the ineffective assistance of counsel, a defendant must show that her counsel’s performance was deficient in that it fell below an objective standard of reasonableness and that the deficient performance prejudiced the defendant such that, absent counsel’s deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). To prevail on an ineffective assistance claim, a defendant must satisfy both the performance and prejudice prongs of Strickland. Strickland, 466 U.S. at 687, 80 L. Ed. 2d at 693, 104 S. Ct. at 2064. A defendant is entitled to competent, not perfect, representation, and counsel’s performance must be evaluated from counsel’s perspective at the time of the representation. People v. Whitamore, 241 Ill. App. 3d 519, 526 (1993).
In the present case, the evidence does not establish a deficient performance and the defendant’s claim of ineffective assistance necessarily fails. As urged by the majority, there may be cases where the performance and prejudice prongs of the Strickland test overlap; however, this is not such a case. The majority relies on Popoca and Richey in arguing that defense counsel’s performance could not be evaluated in the absence of evidence as to the prejudicial impact of the failure to present a defense based on the Nadelman records. However, both of these cases are distinguishable. In Popoca, the defense claimed voluntary intoxication and the State tried to disprove that the defendant’s intoxication negated the specific intent to kill. Despite the “obvious” fact that the defendant’s intoxication was critical to his defense, defense counsel did not present any expert testimony as to the defendant’s intoxication or how it could have affected his ability to formulate an intent to kill. Popoca, 245 Ill. App. 3d at 954. As stated by the majority, the only evidence as to intoxication was from a lab technician who did not testify in terms readily understood by a jury, i.e., in terms of BAG or the volume of alcohol actually consumed. By contrast, in the present case, defense counsel presented expert testimony that the victim’s ultimately fatal condition was due to an injury prior to August 11, 1994. Moreover, any defense based on the victim’s preexisting conditions was far from “obvious.” As determined by the trial court, Montemurro credibly testified that the victim’s preexisting conditions were discussed and that Dr. Leestma did not indicate that those conditions would be significant to a defense.
In Richey, defense counsel did not present any expert testimony to rebut the State’s evidence and did not consult with his expert sufficiently in advance of trial. Richey, 498 F.3d at 348. In its supplemental opinion, the majority states that it cited Richey “to show only that defendant deserved an evidentiary hearing of the scope seen in Richey” and that “Richey will be procedurally comparable to this case only when the trial court has concluded the evidentiary hearing on remand.” 398 Ill. App. 3d at 934. The point is, however, that such an evidentiary hearing in this case is not warranted because in the present case, unlike in Richey, defense counsel presented a defense supported by expert testimony. Additionally, the evidence showed that defense counsel consulted with Dr. Leestma on many occasions and that they specifically discussed the relevance of the Nadelman records and the victim’s preexisting conditions. The majority cites to Montemurro’s testimony, when pressed for details of his discussions with Dr. Leestma concerning the Nadelman records, that he was “an attorney, not a doctor.” I cannot agree that this testimony shows that defense counsel did not make a reasoned determination as to the use of the Nadelman records. Dr. Leestma could well have given a convincing medical explanation as to the insignificance of the victim’s preexisting medical conditions. Simply because defense counsel could not reiterate that explanation in medical terms five years after trial does not show that he never understood why Dr. Leestma found no significance in the preexisting conditions identified in the Nadelman records or that he was not justified in relying on Dr. Leestma’s opinion.
Further, Montemurro’s testimony and Butera’s case notes demonstrate that sickle cell trait was mentioned to Dr. Leestma. Dr. Leestma afforded that trait little or no weight. The mere fact that the defendant now discovers experts who would find the trait significant to a defense is not a proper basis for a claim of ineffective assistance of counsel. Additionally, as the following cases demonstrate, such a determination is not premature. See 398 Ill. App. 3d at 934 (the majority stating that until a full evidentiary hearing on both prongs of Strickland is held on remand, a determination that Dr. Leestma’s expert assistance cannot be the basis for a meritorious ineffective assistance claim is premature). In Fautenberry v. Mitchell, 515 F.3d 614 (6th Cir. 2008), the defendant was convicted, in part, of two counts of aggravated murder, which rendered him eligible for the death penalty under Ohio law. Fautenberry, 515 F.3d at 621. A sentencing hearing was held and the defendant had an opportunity to present mitigating evidence, which included testimony from the defendant, a medical expert, and friends of the defendant. Fautenberry, 515 F.3d at 621. After all the evidence was heard, the defendant was sentenced to death. Fautenberry, 515 F.3d at 621. Following numerous unsuccessful appeals and postconviction petitions, the defendant filed a petition for a writ of habeas corpus with the federal district court. Fautenberry, 515 F.3d at 622. The federal district court found the defendant’s claim to be either procedurally defaulted or without merit. Fautenberry, 515 F.3d at 622.
On appeal, the defendant argued that his trial counsel rendered ineffective assistance during the penalty phase of his proceedings. Fautenberry, 515 F.3d at 623. One of the defendant’s contentions was that his trial counsel failed to retain “reasonable and necessary” experts and that his expert witness did not provide him with a reasonable level of assistance. Fautenberry, 515 F.3d at 625. The defendant argued that his expert witness misdiagnosed his mental condition when she concluded that he did not suffer from organic brain damage. Fautenberry, 515 F.3d at 625. The reviewing court held:
“Even if we assume [the medical expert] did misdiagnose [the defendant], ‘[a] licensed practitioner is generally held to be competent, unless counsel has good reason to believe to the contrary.’ Lundgren v. Mitchell, 440 F.3d 754, 772 (6th Cir. 2006). [The defendant] has not shown that counsel had ‘good reason’ to believe that [the medical expert] was incompetent, and we conclude that it was objectively reasonable for counsel to rely upon the doctor’s opinions and conclusions. See Campbell v. Coyle, 260 F.3d 531, 555 (6th Cir. 2001) (holding, in a case where there was ‘no evidence that [the expert] was incompetente ] or that [the petitioner’s] lawyers had any reason to question [the expert’s] professional qualifications,’ that ‘it was objectively reasonable for ... trial counsel to rely upon [the expert’s] diagnosis’). Under these circumstances, any inadequacies in [the doctor’s] expert assistance — assuming there were any — cannot be the basis for a meritorious ineffective-assistance claim. Accordingly, we find no deficiency in counsels’ performance.” Fautenberry, 515 F.3d at 625-26.
The majority finds Fautenberry inapposite because the claim in Fautenberry was that the expert misdiagnosed the defendant, whereas, in the present case, the “defendant’s pleading assumed that counsel received no pretrial expert opinion on the Nadelman records” from Dr. Leestma. 398 Ill. App. 3d at 926. Nonetheless, despite what the defendant’s pleading assumed, Montemurro testified that he consulted with Dr. Leestma concerning the Nadelman records and that Dr. Leestma found no relationship between the victim’s preexisting conditions and his fatal injuries.
In Marcrum v. Luebbers, 509 F.3d 489, 511 (8th Cir. 2007), the court summarized as follows the issue of ineffective assistance of counsel as it relates to obtaining expert testimony:
“Where counsel has obtained the assistance of a qualified expert *** and nothing has happened that should have alerted counsel to any reason why the expert’s advice was inadequate, counsel has no obligation to shop for a better opinion. [Citations.] The fact that a later expert *** renders an opinion that would have been more helpful to the defendant’s case does not show that counsel was ineffective for failing to find and present that expert.” Marcrum, 509 F.3d at 511.
See also King v. Kemna, 266 F.3d 816, 827 (8th Cir. 2001) (Heaney, J., dissenting) (the sixth amendment does not require counsel to “second-guess the conclusions of medical professionals in the absence of evidence to the contrary”).
In the present case, defense counsel’s reliance on Dr. Leestma’s opinion relative to the victim’s preexisting conditions, and their decision not to seek further evaluation of those conditions, was within the range of reasonable professional judgment. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. “[Reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste.” Rompilla v. Beard, 545 U.S. 374, 383, 162 L. Ed. 2d 360, 372, 125 S. Ct. 2456, 2463 (2005). In fact, “a counsel’s decision that further investigation would only produce more of the same is treated very much like a strategic decision.” 3 W. LaFave, J. Israel, N. King & O. Kerr, Criminal Procedure §11.10(c), at 981 (3d ed. 2007). There is no evidence in the record that at the time defense counsel was preparing their defense they had any reason to believe that Dr. Leestma was incompetent or that any other expert would view the victim’s preexisting medical conditions any differently, and it was therefore objectively reasonable for counsel to rely on Dr. Leestma’s conclusion that the preexisting medical conditions identified in the Nadelman records were unrelated to the victim’s injuries and death. Marcrum, 509 F.3d at 511; King, 266 F.3d at 827. Any inadequacies in Dr. Leestma’s expert assistance cannot be the basis for a meritorious ineffective assistance claim. See Fautenberry, 515 F.3d at 625-26. The alleged deficiency here was certainly not glaring and obvious as in Popoca and Richey, and any meritorious defense based on the Nadelman records was not consciously omitted. Accordingly, I find no deficiency in counsel’s performance. Because the defendant has failed to establish the first Strickland prong, her ineffective assistance claim must fail and the trial court did not err in bifurcating the evidentiary hearing under these circumstances. I would therefore grant the State’s petition for rehearing and affirm the trial court’s determination without remanding for further proceedings.