from Circuit Court of McLean County No. 13CF873. Honorable
John Casey Costigan, Judge Presiding.
JUSTICE HOLDER WHITE delivered the judgment of the court,
with opinion. Justices Steigmann and Appleton concurred in
the judgment and opinion.
1 In July 2013, defendant, Ryan Schutz, hired attorney M.
Jane Foster to represent him in an ongoing criminal case. In
November 2013, Foster was hired to represent Kristopher
Johnson in two unrelated criminal cases. The following month,
Foster withdrew from defendant's case. In February 2014,
Johnson, who was still represented by Foster, entered into a
plea agreement conditioned upon him testifying against
defendant in defendant's pending case. Defendant's
attorneys at his bench trial, David Rumley and Michael
Herzog, had also previously represented Johnson in unrelated
matters. Following the bench trial, the trial court found
defendant guilty of multiple charges and subsequently
sentenced him to 12 years' imprisonment.
2 Defendant appeals, asserting all three of his attorneys
labored under conflicts of interest that should result in us
reversing his convictions and remanding for a new trial. For
the following reasons, we affirm.
3 I. BACKGROUND
4 In July 2013, the State charged defendant with numerous
offenses related to one victim: (1) four counts of criminal
sexual assault while holding a position of trust (720 ILCS
5/11-1.20(a)(4) (West 2012)), (2) four counts of criminal
sexual assault by force or threat of force (720 ILCS
5/11-1.20(a)(1) (West 2012)), (3) four counts of aggravated
criminal sexual abuse (720 ILCS 5/11-1.60(d) (West 2012)),
and (4) two counts of providing alcohol to a minor (235 ILCS
5/6-16(a)(iii) (West 2012)).
5 Later that month, Foster filed an entry of appearance on
defendant's behalf. Foster appeared on defendant's
behalf for numerous pretrial matters, including (1)
defendant's waiver of his right to a jury trial, (2) two
State motions to compel, and (3) the State's motions to
allow evidence pursuant to sections 115-7.2 and 115-7.3 of
the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.2,
115-7.3 (West 2012)).
6 In November 2013, while she continued to represent
defendant, Foster entered her appearance on behalf of
Kristopher Johnson in two unrelated criminal cases (McLean
County case Nos. 13-CF-735 and 13-CF-1332). At some point in
November or December 2013, Johnson, who shared a jail cell
with defendant, obtained incriminating evidence from
defendant regarding defendant's criminal case.
7 Foster withdrew from defendant's case in December 2013.
In February 2014, Johnson entered into a plea agreement
wherein he agreed to testify against defendant. Foster signed
her acknowledgment of the plea agreement.
8 In March 2014, defendant's case proceeded to bench
trial, where he was represented by Rumley and Herzog.
Pursuant to his plea agreement, Johnson testified against
defendant, stating he had a conversation with defendant in
the McLean County jail wherein defendant admitted committing
sexual acts with the victim. Herzog objected to Johnson's
testimony on numerous occasions, citing lack of foundation or
9 On direct examination, Johnson admitted he had previously
committed drug offenses that resulted in probation and prison
sentences. During cross-examination, Rumley and Herzog did
not question Johnson about his prior convictions for
aggravated battery (McLean County case No. 07-CF-648),
violation of bail bond (McLean County case No. 11-CM-752), or
felony theft (McLean County case No. 12-CF-177), all
impeachable convictions the State disclosed in discovery but
failed to raise on direct examination. Herzog cross-examined
Johnson regarding the plea agreement, and Johnson admitted he
hoped to get a lighter sentence for disclosing confessions
from other inmates, particularly those charged with sex
offenses. Johnson also admitted he specifically sought
information from defendant due to the nature of
defendant's case. Herzog also challenged Johnson's
version of events, which Rumley highlighted during closing
arguments. Rumley argued Johnson's testimony was
"laughable, " as Johnson "pretended" to
know details about the offense, but those details were
inconsistent with other evidence. Moreover, Rumley
highlighted that Johnson was a "jailhouse snitch"
and convicted felon.
10 In one of the cases involved in Johnson's plea
agreement with the State (McLean County case No. 13-CF-735),
Herzog had represented Johnson for purposes of conducting a
June 2013 bond hearing. The record contains no evidence that
defendant or the trial court knew of Herzog's prior
representation of Johnson. Additionally, Rumley represented
Johnson in a prior criminal proceeding unrelated to
Johnson's plea agreement (McLean County case No.
12-CF-177), wherein Johnson was convicted of felony retail
theft. Neither the State nor Rumley or Herzog impeached
Johnson regarding his conviction on this offense. The record
contains no evidence that defendant or the trial court knew
of Rumley's prior representation of Johnson.
11 Following the presentation of evidence, the trial court
found defendant guilty of one count of criminal sexual
assault, one count of criminal sexual abuse, and two counts
of providing alcohol to a minor. In reaching its decision,
the court found the victim credible given the general
consistency of her statements. The court also noted that
several witnesses testified about profound changes in the
victim around the time of the alleged offenses, including a
diagnosis of posttraumatic stress disorder, that gave further
weight to the victim's testimony. As to Johnson's
testimony, the court said, "while the court does not
place a high degree of reliability in Mr. Johnson, the court
would note that there are certain facts that he testified to
that would be difficult for him to know had he not had a
conversation that he claims he did with the ...