JUSTICE GARMAN delivered the judgment of the court, with
opinion. Chief Justice Burke and Justices Thomas, Kilbride,
Karmeier, and Theis concurred in the judgment and opinion.
OPINION
GARMAN
JUSTICE
¶
1 Defendant Quentin[1] Bates was convicted of home invasion and
two counts of aggravated criminal sexual conduct against the
same victim. During his trial, the State introduced evidence
of other aggravated criminal sexual conduct crimes that he
allegedly committed. During the hearing for his motion for a
new trial, defendant's retained counsel claimed that he
was surprised at the depth of the evidence introduced
regarding the other crimes and that counsel would have had
that evidence tested by his own experts had he known the
depth. We are called on to decide whether counsel's
statements were an admission of ineffective assistance of
counsel and whether such statements require the trial court
to conduct an inquiry pursuant to this court's decision
in People v. Krankel, 102 Ill.2d 181, 189 (1984).
¶
2 BACKGROUND
¶
3 Defendant was arrested and charged in the circuit court of
Sangamon County with home invasion, aggravated criminal
sexual assault, and other crimes arising out of two separate
incidents. The State alleged that, on September 19, 2011,
defendant entered victim A.P.'s home and, armed with a
knife, sexually assaulted her. The State also alleged that,
on October 6, 2011, defendant entered victim C.H.'s home
in a similar manner and, again armed with a knife, sexually
assaulted her. Charges for both incidents were consolidated
for pretrial proceedings. The same assistant public defender
was appointed to represent defendant in both matters.
¶
4 The State elected to try defendant for the assault of A.P.
first and moved in limine to introduce other crimes
evidence of the assault of C.H. pursuant to section
115-7.3(b) of the Code of Criminal Procedure of 1963 (725
ILCS 5/115-7.3(b) (West 2012)). After that motion was
granted, defendant retained private counsel for the trial
regarding the assault of A.P. only. The public defender
continued to represent defendant regarding the assault of
C.H.
¶
5 Prior to the trial for the assault of A.P., counsel moved
for a continuance because he had "just received a copy
of discovery materials from [the assistant state's
attorney] and/or [the assistant public defender], which are
voluminous." That motion was allowed. Defendant also
moved the court to pay for him to retain a DNA expert to
review the DNA testing conducted by the Illinois State
Police, "which reports to show a match of
Defendant's DNA with matter found on two women in [the
case regarding A.P. and the case regarding C.H.]" At
oral argument on that motion, counsel confirmed that the
scope of the request "would include the evidence in [the
case regarding the assault of C.H.]" That motion was
granted, and the court authorized the expenditure.
¶
6 Counsel also moved for reconsideration of the order
permitting the State to introduce the other crimes evidence,
arguing that defendant could not receive a fair trial
"if evidence is allowed from matters derived from
evidence in [the case regarding the assault of C.H.]" As
late as the week before trial, counsel continued to argue
that admission of evidence regarding the assault of C.H.
"would be grievous error," that he would be
successful on appeal, and that "we would have to start
all over again." Despite his earlier request for funds
to pay for an independent DNA expert to review Illinois State
Police testing of "matter found on two women," he
stated that "he would need to hire an expert to review
those-the evidence in [the case regarding the assault of
C.H.]" He later stated, at the Rule 402 plea conference
(Ill. S.Ct. R. 402(d)(1) (eff July 1, 2012)), that "[a]s
far as the [case concerning the assault of C.H.], I'm not
on that case so I'm not familiar with all of that-all the
facts there, but I assume they're basically
correct."
¶
7 When the case advanced to trial, counsel indicated in his
opening statement that he was not defendant's attorney
regarding the assault of C.H. and that no defense expert had
reviewed the State's report. He asked the jury to
"consider that for what it's worth and that is not
much. It's an accusation. He's not been through
trial."
¶
8 A.P. testified about her assault. The State also introduced
testimony from police officers, a nurse, and a DNA expert.
The DNA expert testified that defendant's DNA matched DNA
from the semen found on the victim's body in 15 of 16
loci tested. Although the DNA found was not a direct match
for defendant's DNA, the expert testified that he could
not exclude defendant as the source of the semen and that he
"would expect approximately one in 2.3 quadrillion
whites, one in 840 trillion blacks, and one in 3.0
quadrillion Southwest Hispanics could not be excluded from
the profile." Counsel cross-examined A.P. and the DNA
expert. He cross-examined the crime scene investigator who
collected evidence at both locations, but only to confirm
that she merely collected, and did not test or process, that
evidence. He did not cross-examine any other witness.
¶
9 C.H. also testified about her assault. The State introduced
testimony from other witnesses regarding that assault,
including another DNA expert. This expert testified that the
DNA recovered from the saliva found on C.H. Matched
defendant's DNA at all 16 loci tested, thus indicating a
match for defendant. She testified that this profile
"would be expected to occur in approximately one in 2.8
quintillion black, one in 53 quintillion white, or one in 270
quintillion Southwest Hispanic unrelated individuals."
Other than the crime scene investigator, counsel did not
cross-examine any witness regarding the assault of C.H.
¶
10 The defense presented one witness, its own DNA expert, who
testified that the DNA profile recovered from A.P. was not as
conclusive as the State's expert testified. He
highlighted the difference between a DNA match and a failure
to exclude defendant's profile from the DNA found on
A.P.'s body. He testified that multiple DNA profiles
could not be excluded from the semen recovered from A.P.'
s body and that defendant was but one of those profiles. He
was not asked about nor did he testify about the DNA found in
the saliva recovered from C.H.'s body. During closing
argument, defense counsel asked the jury not to put much
weight on the "case within a case," also stating
that "[t]here's been no review by any DNA
experts."
¶
11 The jury found defendant guilty of home invasion and two
counts of aggravated criminal sexual conduct, one each for
oral and vaginal penetration of A.P. Defendant moved for a
new trial. In that motion, counsel argued that the trial
court erred in denying defendant's motion in
limine to exclude the other crimes evidence and in
granting a motion by the State to exclude evidence regarding
A.P.'s sexual history. During the hearing on that motion,
counsel stated that he was not defendant's attorney for
the case resulting from the assault of C.H. He stated that
although he was generally aware of the allegations, he
"couldn't possibly do as good a job in defending my
client since it wasn't my case." He also stated that
he "was taken by surprise at the depth of the evidence
and testimony brought by the State's attorney, meaning,
brought the victim-alleged victim, forensic scientists, I had
no chance to review that. As [the court] know[s], had I been
thinking about that case, I would have asked for review by
our own experts." The trial court denied the motion,
noting that it reviewed the motion and "had an
opportunity to review my notes during the trial and the
testimony and I remember it very well."
¶
12 Defendant appealed, arguing that he did not receive
effective assistance of counsel, that he was denied his
constitutional right to confront witnesses against him, that
he should have received a new trial because the State made
improper statements in its closing argument, that the amount
of other crimes evidence deprived him of a fair trial, and
that the trial court erred when it failed to conduct a
Krankel hearing. The ...