Appeal from the Circuit Court of Winnebago County. No. 08-CF-1692 Honorable Joseph G. McGraw, Judge, Presiding.
SYLLABUS Defendant's conviction for residential burglary was reversed and the cause was remanded for a new trial with new counsel where defendant's trial counsel was ineffective in failing to cross-examine the State's DNA expert or present evidence that the partial profile should be considered a 'nonmatch,' failing to present expert testimony that the statistical calculations relied on by the State were flawed, and failing to understand the DNA evidence or ensure that it was properly explained to the jury, and defendant's posttrial counsel was ineffective in only filing a notice of appeal without filing any postsentencing motions.
The opinion of the court was delivered by: Presiding Justice Jorgensen
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justice Burke concurred in the judgment and opinion.
Justice Birkett dissented, with opinion.
¶ 1 Following a jury trial, defendant, Troy S. Watson, was convicted of residential burglary (720 ILCS 5/19-3(a) (West 2006)). On December 3, 2009, the trial court denied defendant's pro se posttrial motion alleging, in part, ineffective assistance of counsel based on counsel's failure to challenge the allegedly marginal statistical significance of admitted deoxyribonucleic acid (DNA) evidence. On December 10, 2009, the court sentenced defendant to 30 years' imprisonment. Defendant did not file a postsentencing motion.
¶ 2 On appeal, defendant argues that both trial and posttrial counsel provided ineffective assistance. Specifically, defendant asserts that, where the only evidence the State produced against him constituted a partial DNA "match," trial counsel provided ineffective assistance in that she did not: (1) cross-examine the State's DNA expert or present any evidence regarding the fact that the partial profile should be considered a "nonmatch" and was not, in fact, unique; (2) present any expert testimony to establish that the statistical calculations relied upon by the State and its expert were flawed; and (3) understand the DNA evidence or ensure that it was properly explained to the jury. As to posttrial counsel, defendant asserts that counsel provided ineffective assistance where he was appointed for the purpose of filing postsentencing motions but, instead, filed only a notice of appeal. For the following reasons, we conclude that defendant was denied the effective assistance of trial counsel. We reverse his conviction and remand for a new trial with new counsel. We do not reach the issue of whether posttrial counsel was ineffective.
¶ 4 On August 17, 2007, Anna Berman was housesitting for her boyfriend's uncle, Craig Corcoran. When she arrived at Corcoran's residence, the back door was ajar and, inside, items were disturbed and various belongings were missing. The items stolen from the residence included a laptop computer, a video game system, and a flatscreen television. Berman telephoned the police.
¶ 5 The police investigation revealed that a patio chair was pulled under a bathroom window; the bathroom storm window was removed and broken, the interior window was pried open, and it appeared that the screws on the window lock were unscrewed to gain entry to the home through the bathroom. No usable fingerprints were recovered from the window, bathroom, or remainder of the house. A tennis shoe or other footwear imprint was found on the toilet seat underneath the entry window; a lift of the print was not tied to defendant. Police collected small hairs found on the broken glass of the window and a screwdriver (which did not belong to Corcoran) found in the master bedroom and sent them to be tested by the State Police crime lab for possible DNA evidence.
¶ 6 Approximately 16 months later, on December 31, 2008, a buccal swab was used to collect defendant's DNA.
¶ 7 Blake Aper, a forensic scientist employed by the State Police,
testified that he performed DNA analyses comparing defendant's DNA
with the DNA collected from the screwdriver and hairs recovered from
the crime scene. In approximately 36 pages of trial transcript, Aper
was admitted as an expert in DNA analysis, he explained generally what
DNA is and how the analysis works, and he explained that the
laboratory types 13 loci on the DNA to create a profile.*fn1
The laboratory prefers to have a minimum of three nanograms
of DNA to profile. Further, Aper explained that, while buccal swabs
taken from individuals typically result in full 13-loci DNA profiles,
it is not expected that full profiles will be recovered from samples
left at crime scenes. DNA information from such a sample can be lost
due to environmental factors, if someone was wearing gloves when
handling the item from which the sample was recovered, if the source
of the sample is not a "good DNA
shedder," if that individual did not handle the item for a long period
or did not handle it roughly, or if the item does not have a good
surface onto which to transfer DNA.
¶ 8 Aper testified specifically regarding the samples collected from the crime scene as compared to defendant's DNA. First, as to the screwdriver, Aper explained that the swab recovered only 1.1 nanograms of DNA. From that low-level sample, Aper was able to obtain information from only 3 loci, as opposed to the 13 loci normally viewed. Aper concluded that the sample contained a mixture of more than one person's DNA. He compared defendant's DNA to the three loci and excluded defendant as having contributed to the sample.
¶ 9 Next, as to the hairs recovered from the window, Aper testified that the sample constituted 21/2 nanograms of DNA. Again, Aper was not able to get a full profile from all 13 loci; rather, the sample allowed him to obtain information from only 7 of the 13 loci. Aper compared defendant's DNA standard to the seven-loci DNA profile recovered from the window. He concluded that he "was not able to exclude [defendant] as contributing to that stain."
¶ 10 To explain his process, Aper prepared, and the jury was shown, charts reflecting defendant's DNA profile and the types Aper obtained from the screwdriver and the hairs from the window. Aper explained that, on each chart, there were markings reflecting the 13 DNA loci. At each locus, there was a notation reflecting the type obtained at that locus, and if there was no DNA recovered at a locus, there was a notation reflecting that. Aper then demonstrated for the jury how the chart reflecting the types recovered from the screwdriver compared with defendant's profile such that defendant could be excluded as having contributed to the mixed sample. Aper next explained the comparison process and results obtained when comparing defendant's DNA profile to the seven-loci profile recovered from the hairs:
"I look at the first location. There's a 1618; [defendant is] a 1618. Second location, 1417; he's a 1417. Third location, 1921; he's a 1921. Fourth location, 1213; he's a 1213. This [fifth] location 2931.2; he is a 2931.2. Since there is no information in my crime scene profile at this location, no comparisons really happen here. So I go down to here, this D5 [sixth location] where there's a 1012, [defendant] has a 1012.
This D13 [seventh] location I have a type 10, and he has a 1013. So he's got some. There is one type that's consistent with this profile, but I did not observe the 13 there. But the problem is when we get low level DNA samples, sometimes we have information below, let's say, our threshold for analysis. And that's what happens sometimes we get, let's say, our threshold is set at 150; and that's just telling you how high-how much DNA is there. For a threshold of 150, sometimes you can have information below our threshold, and that doesn't show up on the chart. So this information here was strong enough for me that I could not exclude him as a contributor because it's possible that a 13 is at this location, but it's below our threshold."
Aper was asked, "[W]ith regard to the DNA swabbing from the window, which you said the defendant cannot be excluded, what are the odds of finding that DNA profile in the general population?" (Presumably, such that, like defendant, someone else's DNA would, at those seven loci, match the profile from the hairs on the window.) He replied: "Approximately 1 in 1.4 billion black, 1 in 103 million white, and 1 in 170 million Hispanic individuals cannot be excluded from having contributed to that stain." As defendant is a white male, "you would have to sample roughly 103 million white people to find someone that also cannot be exclude[d] from that profile from that window." Aper testified that he had checked earlier that morning, and the population of the United States is roughly 307 million people.
¶ 11 Defense counsel's entire cross-examination of Aper follows:
"COUNSEL: Mr. Aper, you were just testifying about a general population, people in the general population. Your findings then take into consideration only people who are unrelated to [defendant]; is that correct?
COUNSEL: And that's because people who are related share similar types of DNA?
APER: Yes. That's possible."
¶ 12 On re-cross, defense counsel clarified that, while only identical twins would share exactly the same DNA at all 13 levels, a relative might share some levels.
¶ 13 Outside the presence of the jury, defense counsel noted that defendant wanted her to cross-examine Aper on the fact that defendant became a suspect in this case as a result of, as counsel put it, a "hit" in the State's database of convicted felons (which contained defendant's DNA profile). The court agreed with counsel that informing the jury that defendant was a convicted felon would not have been helpful to his case. Defendant's motion for a directed verdict at the close of the State's case was denied. Defendant presented no evidence.
¶ 14 In closing, defense counsel highlighted that the sole piece of evidence the State presented to link defendant to the burglary was the DNA evidence recovered from the hairs on the window. She reminded the jury that: (1) there were no eyewitnesses; (2) no fingerprints were recovered; (3) there was no evidence linking the bathroom footprint to defendant; (4) the DNA testing of the screwdriver that was presumably used during the break-in did not match defendant; and (5) no stolen property was traced back to him. As to the DNA recovered from the hairs, counsel noted that Aper testified only that defendant could not be excluded as having contributed to that sample; "[i]t's not a perfect match." Counsel also noted that, of the 13 loci that are supposed to be profiled, 4 loci were not profiled or tested. She summarized that, of the nine loci that were profiled, "only seven were a match to [defendant]. *** Just over half the DNA match is what we have here." Counsel argued that other people in the general population, including someone related to defendant, might have contributed to the sample.
¶ 15 The State, in its opening and rebuttal closing arguments, argued that Aper analyzed the evidence and found it "to match defendant." The State noted that Aper testified that defendant's DNA profile would occur one time in 103 million white males, and given that the population of the United States is just over 300 million people, that means that only 3 people in the United States would have that profile. "So what is the likelihood of two other people other than the defendant happening to be in Rockford at Craig Corcoran's house and leaving their DNA behind?"
¶ 16 On August 11, 2009, the jury found defendant guilty of residential burglary. On December 10, 2009, at sentencing, the State highlighted for the court defendant's criminal history, including multiple convictions of residential burglary and possession of a controlled substance and that defendant "has pretty much been incarcerated in the Department of Corrections or jail since August of 1988." Defendant proceeded pro se at the sentencing hearing. In his statement in allocution, defendant informed the court that he was involved in spiritual and other programs. Further, defendant stated:
"I know my past is anything but good to look at. I can even understand why the State's asking for what they are. I don't want to sit here and make excuses for anything. *** I guess I don't want to make excuses because I can understand where the State's coming from and everything from what they've presented *** I know no matter what sentence you send forth is going to be less than what I deserve. *** I would ask for forgiveness from all those that I have harmed. In the sense that in the past I may have been able to justify my actions, I cannot do that today, other than what I can believe in, this is my life, Jesus Savior paying for my sins."
Defendant's prior record rendered him eligible for Class X sentencing, and the court sentenced defendant to the maximum sentence of 30 years' imprisonment.
¶ 17 Defendant agreed to allow the court clerk to file on his behalf a notice of appeal challenging his conviction. The trial court advised defendant that, if he wished to appeal his sentence, he must file with the trial court a written motion to reconsider the sentence. Defendant asked to make an oral motion, but the court instead asked defendant if he wanted an attorney to assist "in preparing any written motions challenging the sentence of the sentencing hearing"; defendant answered affirmatively. The court stated that it would appoint an attorney to "represent [defendant] on those motions." The record reflects that, the same day, the court issued a notice to posttrial counsel, informing him of his appointment to represent defendant for "filing of ~ [sic] defendant's postsentence motions." No postsentence motions were filed. Rather, one week later, posttrial counsel filed on defendant's behalf a notice of appeal.
¶ 19 A. Ineffective Assistance-Trial Counsel
¶ 20 Defendant argues that trial counsel's performance constituted ineffective assistance where she failed to convey to the jury the insignificance of his DNA matching the crime-scene DNA at only seven loci. Defendant notes that counsel failed to present any evidence, through cross-examination or the presentation of witnesses, reflecting that a finding based on a profile of fewer than 13 loci is unreliable. He argues that, at the time of his trial, such evidence was available and that counsel's demonstrated lack of knowledge reflects that she did not investigate the issue. Defendant argues that counsel's actions cannot be considered sound trial strategy and that no reasonably effective defense attorney presented with the same circumstances would engage in similar conduct. As the State's prosecution against him was based entirely on the DNA evidence and his conviction rested solely on Aper's testimony, defendant argues that, if counsel had presented evidence to show that the partial "match" was insignificant, there is a reasonable probability that the result of the trial would have been different. Defendant requests that we reverse his conviction and remand the case for a new trial with different counsel.
¶ 21 A defendant may raise an ineffective-assistance claim on direct appeal when the basis of the claim can be ascertained from the record. See, e.g., People v. Phillips, 383 Ill. App. 3d 521, 544-45 (2008) (addressing claims that could be ascertained from the record (counsel's failure to request a jury instruction on a lesser included offense), but declining to address claims that required consideration of matters outside the record (counsel's failure to introduce into evidence a report not in the record)). Here, defendant's ineffective-assistance claim challenges counsel's on-the-record performance or, more importantly, her absence of performance. See, e.g., People v. Foster, 168 Ill. 2d 465, 480 (1995) (noting in a postconviction setting that certain allegations regarding an attorney's failures to perform constituted claims for which facts were contained in the trial record and could have been raised on direct appeal). Specifically, posttrial, defendant in his pro se capacity challenged counsel's lack of cross-examination of the State's DNA expert, her failure to present any evidence to challenge the DNA evidence, and the overall effectiveness of her efforts regarding that evidence. Therefore, we can ascertain from the record whether counsel's performance (for example, the extent of counsel's cross-examination of the State's key witness, counsel's statements to the jury regarding a "match," and the fact that she called no witnesses) fell below an objective standard of reasonableness and caused defendant prejudice. Contrary to the dissent's assertions, addressing defendant's claim is proper.*fn2
¶ 22 The sixth amendment guarantees an accused in a criminal prosecution the right to assistance of counsel. U.S. Const., amend. VI. The right to counsel encompasses the right to effective counsel; " 'the essential aim of the amendment is to guarantee an effective advocate for each criminal defendant.' " People v. Holmes, 141 Ill. 2d 204, 218 (1990) (quoting Wheat v. United States, 486 U.S. 153, 159 (1988)). The appropriate focus in evaluating a sixth amendment claim is the adversarial process. Id. at 217. More specifically, a defense attorney has an "overarching duty" to advocate for his or her client's case and to use his or her skills and knowledge to render the trial a reliable adversarial process. Strickland v. Washington, 466 U.S. 668, 688 (1984). The constitutional guarantee of effective counsel contemplates that, to render the trial a reliable adversarial process, counsel will engage evidentiary rules to shield his or her client from a decision based on unreliable evidence (People v. Moore, 279 Ill. App. 3d 152, 159 (1996)) and will appreciate and understand the legal principles applicable to the case (People v. Faulkner, 292 Ill. App. 3d 391, 394 (1997)). Further, "[i]t contemplates assistance ready to provide an adversarial check to a prosecutor's excessive endeavors." People v. Fletcher, 335 Ill. App. 3d 447, 453 (2002).
¶ 23 When a defendant argues that counsel's performance was ineffective, he or she must show both that: (1) the attorney's performance fell below an objective standard of reasonableness (deficient performance prong); and (2) there is a reasonable probability that, but for the attorney's deficient performance, the outcome of the trial would have been different (prejudice prong). Strickland, 466 U.S. at 687; People v. Villareal, 198 Ill. 2d 209, 228 (2001). To succeed on an ineffective-assistance claim, both Strickland prongs must be satisfied. Strickland, 466 U.S. at 687; People v. Williams, 181 Ill. 2d 297, 320 (1998). A reasonable probability is a probability sufficient to undermine confidence in the outcome; specifically, that counsel's deficient performance rendered the result of the trial unreliable or the proceeding fundamentally unfair. People v. Enis, 194 Ill. 2d 361, 376 (2000).
¶ 24 There is a strong presumption that an attorney's performance falls within the wide range of reasonable professional assistance. Trial strategy cannot be a basis for finding counsel ineffective. See People v. Smith, 177 Ill. 2d 53, 93 (1997). However, the presumption that the challenged action or inaction was the product of sound trial strategy may be overcome where no reasonably effective defense attorney, confronted with the circumstances of the defendant's trial, would engage in similar conduct. Fletcher, 335 Ill. App. 3d at 453. Our review of defendant's ineffective-assistance claim is bifurcated: we defer to the trial court's findings of fact unless they are contrary to the manifest weight of the evidence, but we assess de novo the ultimate legal issue of whether counsel's act or omission supports an ineffective-assistance claim. People v. Bailey, 375 Ill. App. 3d 1055, 1059 (2007). For the following reasons, we conclude that, here, both Strickland prongs are met.
¶ 25 First, we conclude that counsel's performance fell below an objective standard of reasonableness. Counsel failed to effectively challenge the meaning or significance of Aper's conclusions based on only a partial-profile comparison. Specifically, Aper's testimony explained that he could compare defendant's DNA with only seven loci on the hair DNA. Counsel neither argued nor presented any evidence challenging the reliability of a partial-profile comparison. Nor did counsel probe the accuracy of Aper's testimony of the statistical probabilities ("1 in 1.4 billion black, 1 in 103 million white, and 1 in 170 million Hispanic individuals") of finding in the general population another profile similar to defendant's such that it would match the hair DNA at those seven loci. At the time of trial, however, viable arguments or evidence challenging the significance of Aper's findings could have been made.*fn3
¶ 26 For example, as to the significance of a "match" at fewer than 13 loci, one legal scholar has explained that matching at fewer than 13 loci will exclude a suspect if it can be determined that there is no match at the remaining available loci. "When the same thirteen loci can be typed in a crime-scene sample, a mere nine-[loci] match will not generate a suspect. In fact, the discrepancies in the full profile at the other four loci will exclude a suspect as a possible source of crime-scene DNA." David H. Kaye, Trawling DNA Databases for Partial Matches: What is the FBI Afraid Of?, 19 Cornell J.L. & Pub. Pol'y 145, 153-54 (2009). Here, counsel did not press Aper or present evidence regarding the theoretical possibility that, if defendant's DNA profile were found to match the hair DNA at seven loci, but to not match at any of the six missing loci, defendant likely would be excluded as the source of the crime-scene DNA. In fact, Aper's explanation of the chart comparison reflects that, at the seventh locus, Aper could not with certainty state that defendant matched; "[t]his D13 [seventh] location I have a type 10, and he has a 1013. So he's got some. There is one type that's consistent with this profile, but I did not observe the 13 there." Aper explained that it was possible that defendant would match at that locus, but that the threshold of the sample was simply too low to opine with certainty. Counsel did not highlight this discrepancy to the jury or examine Aper on the fact that, at one of the seven loci, he could not claim a match and, therefore, concluded only that defendant could not be excluded as a contributor, not that defendant was a match. Instead, while counsel in closing argument reminded the jury that not all 13 loci that are routinely profiled were available, she stated that "seven were a match to [defendant]. *** Just over half the DNA match is what we have here." Counsel did not, however, through evidence or argument, develop for the jury that the missing loci could be critical and, in fact, exculpatory. While it was up to the jury to decide what weight to give a match at "over half" of a full DNA profile, counsel did not present the jury with any information against which to weigh that evidence.
¶ 27 The error created by the absence of argument or evidence challenging the strength of a partial match is compounded by the absence of any argument or evidence challenging the statistical significance of a partial match. The statistical probability of finding a DNA profile in the general population is a critical step in DNA analysis. See People v. Miller, 173 Ill. 2d 167, 185 (1996) ("For a [DNA] match to be meaningful, a statistical analysis is required. The statistical analysis determines the frequency in which a match would occur in a database population."). Here, Aper's testimony regarding the statistical probability of finding in the general population a match to defendant's DNA (such that it would, at the relevant seven loci, match the partial profile from the crime scene) was unchallenged. However, studies of various states' databases collecting offenders' DNA profiles have led legal scholars and mathematicians to doubt the alleged low probability of encountering a random, partial-profile "match" in the general population.
¶ 28 For example, a 2005 study of the offender database in Arizona revealed that, within the database of 65,493 profiles, there were 122 pairs of profiles that matched at 9 loci (but did not match at the other 4 loci), and another 20 pairs that matched at 10 loci (and did not match at the remaining 3 loci). Kaye, supra, at 154. In other words, more than 284 individuals had the same information (more specifically, alleles) at nine loci as at least one other individual in the database. These findings prompted commentary that, if the frequency "for a nine-locus match is anything like one in 754 million for whites, and one in 561 million for blacks [as some DNA experts testify], how can it be that a database as small as [Arizona's with] a mere 65,493 entries produces even one such match?" (Internal quotation marks omitted.) Kaye, supra, at 155. Similar results have been discovered in the offender databases in Maryland (32 pairs of 9-loci matches within a database of 30,000 profiles) and, apparently, California (among 65,000 profiles, there were 122 pairs that matched at 9 of the 13 loci). See Ken Strutin, Databases, E-Discovery and Criminal Law, 15 Rich. J.L. & Tech. 6, 54 (2009).*fn4 Legal scholars and scientists have further questioned whether the "extraordinarily large" figures used in court to estimate the probability of a random match in the general population are "no better than alchemy," and one mathematician has called such numbers " 'total nonsense' " and " 'a damned lie' " and has stated that admitting this testimony in court is " 'disgraceful' " and that courts " 'may as well admit alchemy and astrology.' " Kaye, supra, at 145, 147 (quoting Keith Devlin, Damned Lies (Oct. 2006), http://www.maa.org/devlin/devlin-10-06.html). Nevertheless, other than to suggest that one of defendant's relatives might have DNA similar to defendant, the defense presented no evidence or even argument that Aper's figures, given that they were based on only a partial-profile comparison, might be inaccurate.
¶ 29 The State argues that counsel did not perform unreasonably, because: (1) her decisions were strategic; (2) the methods and statistical analyses Aper employed have been found reliable in other cases (e.g., Miller, 173 Ill. 2d at 189); and (3) convictions have, in other cases, been upheld based on matches at fewer than seven loci.*fn5 Thus, the State concludes that, given the established precedent of the reliability of DNA evidence with loci profiles either equal to or with fewer than the seven here, defendant was provided with competent representation.
¶ 30 Extending this argument and taking it to its logical conclusion, the State suggests that a defense counsel may be excused for not subjecting the State's DNA evidence (here, the only evidence offered against defendant) to adversarial testing if the methods used or results found have been upheld in another case. We reject this argument. Simply put, the issue on appeal here concerns advocacy, not admissibility. We are not considering whether Aper's testimony, the methods he used, and the evidence to which he testified were, in fact, unreliable. We offer no opinion on whether a conviction based on a seven-loci match is sustainable. Further, we express absolutely no opinion about the accuracy of the aforementioned database studies or whether convictions in other cases were properly upheld on the partial-profile matches. Although the dissent faults us for not commenting on the merits of the sources, the admissibility of the scientific evidence here is not at issue. Rather, we assess simply the competency of counsel's performance. The fact that other cases have upheld convictions based on fewer-loci matches (where, as noted, there was also significant corroborating evidence of guilt), or that the methods have been found reliable, is irrelevant. Here, reliability is simply divorced from advocacy.
¶ 31 It is critical to note that, contrary to the dissent's characterization of our decision, we do not find counsel's performance deficient simply because she failed to use the referenced academic writings, nor do we set knowledge of obscure academic articles as the baseline requirement for effective representation.Rather, we consider whether counsel, in her role as defendant's advocate and with her "overarching duty" to use her skills and knowledge to render the trial a reliable adversarial process, subjected the evidence against defendant to the type of inquiry to which a reasonably effective defense attorney, confronted with the circumstances of defendant's trial, would subject it. In our view, there is no question that, in any routine presentation of DNA evidence, a reasonably effective defense attorney confronted with the circumstances of defendant's trial would, in some capacity, argue that a DNA comparison based on fewer than 13 loci might be unreliable or that the partial profile recovered might not be uncommon. While the existence of the aforementioned studies and commentary (which, we note, pertained to matches at nine loci, not only seven as presented here) are examples of resources that could be referenced to formulate those arguments, our assessment of counsel's performance is not tied to any particular academic source or compilation of sources. Indeed, the well-established fact that the police routinely test DNA evidence at 13 loci is the only information needed to make a basic argument that the fewer loci available for testing the less certain the results might be. Further, the fact that, as the dissent points out, there is a statutory procedure by which an attorney may request a database search for the recovered DNA profile (725 ILCS 5/116-5(a) (West 2006)) reflects that attorneys need not act as, to use the dissent's words, "omniscient academics" in order to know that questioning the statistical implications of a recovered DNA profile is a basic line of inquiry. Infra ¶ 76. We conclude that it was objectively unreasonable for counsel to refrain from pursuing, in any regard, a challenge to the significance, if any, of the alleged seven-loci match presented.
¶ 32 When we view in its entirety the manner in which defense counsel handled the DNA issue in this case, it is clear that counsel's challenge to this evidence was virtually nonexistent, and quite possibly counsel simply did not understand the evidence. Again(and unlike the cases upon which the State relies to argue that convictions may be upheld on partial-profile matches), the only evidence linking defendant to this crime (the seven-loci comparison) was uncorroborated and unchallenged. Counsel's cross-examination of the only witness linking defendant to the crime consisted of three questions. We do not mean to suggest that the number of questions asked rendered the performance per se unreasonable. Indeed, we acknowledge that, generally speaking, whether to call particular witnesses and the manner and extent of cross-examination are matters of trial strategy that will not ordinarily support an ineffective-assistance-of-counsel claim. People v. Ramey, 152 Ill. 2d 41, 54 (1992). However, as an ineffective-assistance claim requires consideration of how a reasonably effective defense attorney would conduct himself or herself if confronted with the circumstances of the defendant's trial, the question of what constitutes sound trial strategy is necessarily fact-dependent. Fletcher, 335 Ill. App. 3d at 453. The presumption that counsel's actions or omissions were the product of sound trial strategy may be rebutted when the chosen strategy is "so unsound that counsel completely fails to conduct any meaningful adversarial testing." (Emphasis added.) People v. Leeper, 317 Ill. App. 3d 475, 482 (2000). Here, there was only one piece of evidence linking defendant to the crime, andthe circumstances required subjecting that evidence to adversarial testing beyond that displayed. As such, we conclude that counsel's performance fell below an objective standard of reasonableness.
¶ 33 Turning to the Strickland prejudice prong, we conclude for similar reasons that there is a reasonable probability, i.e., a probability sufficient to undermine confidence in the outcome, that, but for counsel's deficient performance, the outcome of the trial would have been different. Strickland, 466 U.S. at 687. "DNA evidence is often assumed to have a special aura of certainty and mystic infallibility ***." Joel D. Lieberman et al., Gold Versus Platinum: Do Jurors Recognize the Superiority of DNA Evidence Compared to Other Types of Forensic Evidence?, 14 Psychol. Pub. Pol'y & L. 27, 52 (2008). Here, there was a basis to challenge the infallibility of the DNA evidence against defendant, which was portrayed as a "match," but that argument and evidence was not developed. Given that the DNA evidence here was the only evidence against defendant, there is a reasonable probability that, if counsel had effectively explained and argued to the jury the potential weaknesses of the evidence, reasonable doubt as to defendant's guilt might have been raised.
¶ 34 We note that we disagree with the State that defense counsel cured any prejudice in closing argument. Aper testified only that defendant could not be excluded as contributing to the profile obtained from the hairs on the window. In closing, however, the State emphasized that Aper found a "match," and although defense counsel in her closing accurately recounted Aper's finding, she nevertheless proceeded to refer to the "match" at seven points and say that "over half the DNA match is what we have."*fn6 Further, counsel's inaccurate summary of Aper's statistics-stating that one-third of the population would have defendant's DNA profile-suggests a lack of understanding of the evidence. Thus, while the defense closing argument made clear that there was no other evidence for the jury to consider, it did not erase the prejudice created by the failure to subject that remaining evidence to adversarial testing.
¶ 35 Moreover, we disagree with the State and the dissent that there is no prejudice because defendant admitted his guilt at the sentencing hearing where, in his statement in allocution, he apologized to those he had harmed, indicated that he understood why the State was asking for the maximum sentence, stated that he could not justify his actions, and commented that any punishment he received would be less than what he deserved. It is clear that, to constitute a judicial confession, the statement must directly acknowledge guilt or directly and necessarily imply guilt. Compare People v. Green, 17 Ill. 2d 35, 39, 41 (1959) (finding a judicial confession where the defendant's in-court statement was " 'Well, I will tell the truth, your Honor. You see, I committed the crime.' "), with People v. Redd, 173 Ill. 2d 1, 29-30 (1996) (finding that the State improperly characterized as a confession the defendant's statement to a witness, wherein he asked who "killed the kids" (suggesting knowledge of the killings that others lacked), because the defendant did not therein "directly acknowledge his commission of the offenses"), and People v. Hunter, 331 Ill. App. 3d 1017, 1025-26 (2002) (the defendant, convicted of forgery, stated at sentencing that his "purpose" in going to the currency exchange was to " 'obtain more currency for more crack cocaine' "; court disagreed that stating the purpose for going to the exchange was sufficient to constitute a judicial confession that the defendant was the person who forged the check). Here, defendant's statement, which intermittently discussed prior crimes, his faith, and accepting responsibility for those he had harmed, was simply too vague to be considered a confession. Instead, while defendant's statements may be read to suggest guilt, they may also be read as referring to his remorse for a life of crime generally, and not specifically to this offense, in an attempt to obtain the most lenient sentence possible.
¶ 36 We further disagree with the dissent's position that defendant's examination of witnesses at his posttrial motion hearing meets the standard of a judicial confession. "A judicial confession is a voluntary acknowledgment of guilt during a judicial proceeding, such as a plea of guilty, testimony at trial, or testimony at some other hearing." (Emphasis added.) Hunter, 331 Ill. App. 3d at 1025; see also Green, 17 Ill. 2d at 41-42 ("a judicial confession consists of a plea of guilty to an indictment or some similar action or conduct in a court or judicial proceeding. [Citations.] The testimony of an accused at the trial may constitute a judicial confession, [citation] or such confession may consist of a statement before a magistrate on preliminary [hearing]."). At the posttrial motion hearing, defendant offered no guilty plea or personal testimony, and his questions of witnesses and introduction of evidence are not akin to a guilty plea or his own testimony. Rather, as his motion alleged ineffective assistance of counsel, defendant's presentation at the hearing was designed to establish that he and his counsel had disagreed about trial strategy, namely, whether defendant should take the stand, confess to the crime, and tell the jury that, because God forgives him, the jury should enter a not-guilty verdict. Counsel advised against that strategy, and defendant challenged that advice at the hearing. Therefore, defendant's examination of witnesses and presentation of exhibits reflected that defendant, at one point in pretrial strategy discussions with his attorney, suggested making a judicial confession but did not ultimately do so. We view this evidence as similar to other testimony, at the same hearing, reflecting that defendant had engaged in guilty-plea discussions with the State. The fact that defendant entertained pleading guilty does not equate to a guilty plea. Similarly, evidence that defendant discussed with counsel confessing to the crime in court does not equate to a judicial confession. We conclude, therefore, that Strickland's prejudice prong is satisfied and that there is a reasonable probability that, but for counsel's errors, the result of the trial would have been different.
¶ 37 Accordingly, we reverse defendant's conviction and remand the cause for a new trial with new counsel. Moreover, because we are remanding for a new trial, we must consider whether the evidence was sufficient to prove defendant's guilt beyond a reasonable doubt. People v. Fornear, 176 Ill. 2d 523, 535 (1997). Here, defendant makes no argument regarding the sufficiency of the evidence, and we conclude that, if the evidence presented is accepted by the jury, it would support a finding of guilt. Thus, there is no double jeopardy impediment to a new trial. Fornear, 176 Ill. 2d at 535.
¶ 38 B. Ineffective Assistance-Posttrial Counsel
¶ 39 Defendant next argues that posttrial counsel provided ineffective assistance where he did not file a postsentencing motion. However, as we are reversing defendant's conviction and remanding for a new trial, we need not address this argument.
¶ 41 For the foregoing reasons, the judgment of the circuit court of Winnebago County is reversed, and the cause is remanded.
¶ 42 Reversed and remanded.
¶ 43 JUSTICE BIRKETT, dissenting:
¶ 44 I respectfully dissent. First, I disagree that trial counsel's challenge to the strength of the State's DNA evidence fell below professional norms because counsel failed to conduct a more thorough cross-examination of the State's expert or retain a defense expert to challenge the theoretical basis for the State's DNA analysis. Second, I agree with the State that, even if counsel's performance was deficient, defendant suffered no prejudice, because he made confessions during his sentencing. Though the State does not recognize it, defendant also made confessions during the hearing on his pro se motion for a new trial.
¶ 45 I. Trial Counsel's Performance Was Not Deficient
¶ 46 First, I stress just how high a burden defendant faces attacking trial counsel's performance. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686. "[T]he defendant must prove that counsel made errors so serious, and that counsel's performance was so deficient, that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment." People v. Richardson, 189 Ill. 2d 401, 411 (2000). "[C]ounsel's strategic decisions are virtually unchallengeable" (People v. Palmer, 162 Ill. 2d 465, 476 (1994)); "matters of trial strategy will not support a claim of ineffective assistance of counsel unless counsel failed to conduct any meaningful adversarial testing" (People v. Patterson, 217 Ill. 2d 407, 441 (2005)). Given the sketchy record on the ineffectiveness claim, perhaps the principle most important here is that a "strong presumption" exists that "trial counsel had good reasons for strategic decisions." United States v. Lindsey, 157 F.3d 532, 535 (7th Cir. 1998).
¶ 47 I divide my analysis of trial counsel's performance into two sections. The first section addresses counsel's performance at trial. The second section examines counsel's overall representation in the case, as counsel's performance at trial was but one component of the conduct that Strickland requires us to examine. "The issue of incompetency of counsel is always to be determined from the totality of counsel's conduct." People v. Mitchell, 105 Ill. 2d 1, 15 (1984); see also Montgomery v. Peterson, 846 F.2d 407, 412 (7th Cir. 1988) ("Counsel's performance must be evaluated in view of the totality of the circumstances ***." (citing Strickland, 466 U.S. at 689)). As I explain in greater detail below, the record reflects that counsel engaged in the sound pretrial strategy of pursuing plea negotiations with the aim of minimizing the substantial prison time to which defendant was exposed given the multiple pending charges he was facing in addition to the residential burglary charge in this case. Those six additional charges included three charges of residential burglary, one charge of possession of a stolen vehicle, one charge of theft, and one charge of criminal trespass to land. In aggravation at sentencing, the State produced compelling evidence of defendant's involvement in two specific residential burglaries, which, though it is unclear, may have been among the cases pending during the proceedings below. Counsel secured a reasonable offer of 25 to 30 years in prison, which was in the lower half of the range of prison time (12 to 60 years) that defendant would have faced if convicted of the current offense and of one or more additional residential burglaries if committed while he was on bail for the current offense. Defendant, however, rejected the offer, was tried, and then was sentenced to the maximum of 30 years on the one burglary count alone. Trial court records, of which this court may take judicial notice (see In re Estate of Pellico, 394 Ill. App. 3d 1052, 1059 (2009) (taking notice of circuit court records)), show that all other pending charges were dismissed on December 6, 2010. Viewed in its totality, counsel's conduct was prudent and reasonable, since defendant was spared from the much harsher sentence that he would have received if convicted on the remaining pending charges.
¶ 48 A. Counsel's Conduct at Trial
¶ 49 My initial complaint is that the majority's conclusions are not based on the record, as there virtually is no record on the specific issues that defendant raises on appeal. In defendant's pro se posttrial motion, the allegation of ineffectiveness for counsel's handling of the DNA issue consisted of just these few lines in paragraph 10:
"10. Under the line of defense [that] counsel chose for the defendant his rights to adequate representation and a meaningful adversarial defense were violated to [sic] a fair trial in the said ways:
(1) By both failing and neglecting to question and challenge the [S]tate[']s witness concerning evidence and reports. [Citation.]"
At the evidentiary hearing on his posttrial motion, at which defendant also appeared pro se, defendant questioned trial counsel on her handling of the DNA issue:
"Q. How come you never called anybody on behalf of the defense to question your line of reasoning as far as the Buccal swab testings or hair testing, as to counter the defense-or the State's evidence?
A. Well, the technician that did the testing testified, and I cross-examined that person.
Q. Do you recall the questions you asked?
Q. Do you recall questioning-how many witnesses you questioned during the trial?
A. No. I know that there were witnesses that I asked no questions of. Those were simply witnesses that testified that there had been a burglary. And I was pretty clear there had been a burglary. The question was whether or not you had committed it. So the main focus was on the DNA testimony.
Q. Okay. Your line-your line of defense was?
A. Simply that they could not prove the case beyond a reasonable doubt, based on the evidence that they had.
Q. Okay. And you never called into question any other person to dispute the evidence?
Q. As far as the State making comments in reference to statistical data in trial, in closing arguments, your line of defense was that evidence could be-couldn't exclude anybody related to me, correct?
A. That was one argument, yes. * * *
Q. So as far as [the State] making reference to statistical data that was contrary to your line of defense, why didn't you object?
THE COURT: *** The question is, was there anything that was being argued that was a misstatement of the evidence by either side. The question is, did you feel there was any misstatement made by opposing counsel of the evidence?
A. Not that I specifically recall. If there was-I mean I guess I ...