2019 IL App (3d) 180190
Opinion filed October 8, 2019 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-18-0190 v. ) Circuit No. 07-CF-1926 ) GILBERT KNOWLES, ) Honorable ) Carmen Julia Goodman, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court, with opinion. Justices Carter and Wright concurred in the judgment and opinion. _____________________________________________________________________________
OPINION
¶1 The defendant, Gilbert Knowles, appeals the second-stage dismissal of his postconviction
petition, arguing (1) his petition alleged sufficient facts for his ineffective assistance of counsel
claims to advance to the third stage, (2) Judge David Carlson should not have recused himself,
and (3) the Will County circuit court used flawed reasoning when dismissing the petition.
¶2 I. BACKGROUND
¶3 In 2010, the defendant was convicted of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2)
(West 2006)) and sentenced to 52 years’ imprisonment. The State’s evidence at the bench trial
established that Julie Miller, her two-year-old son, Devin, and her two daughters lived with the defendant in Joliet. The defendant was Julie’s boyfriend. On September 17, 2007, the children
had been with Devin’s father during the day, but had been returned to Julie’s care around 8 p.m.
She did not notice that Devin had any injuries. She gave the children macaroni and cheese and
put them to bed around 9:30 p.m. Shortly thereafter she received a phone call from the
defendant. The defendant was with his brother, Steven Gretz, at a bar and asked Julie if she could
take Steven to Morris. Julie agreed, the defendant returned home, and then Julie left to pick up
Steven. Julie and Steven stayed at the bar for a while, and then Julie drove Steven back to her
house to retrieve something from the defendant’s car. She briefly went into the house and saw
the defendant asleep on the couch. She then took Steven home and stayed at his house for a
couple of hours. When she arrived home, she went straight to bed. The next morning, her
daughter woke her around 8 a.m. and told her that she could not find Devin. Julie ran into
Devin’s room and found him wedged between the wall and his bed. She grabbed him and called
911. Devin was pronounced dead at the scene at 9:03 a.m. There were no signs of forced entry
into the home.
¶4 Detective Linda Odom testified as an expert in the field of criminal investigation,
specifically regarding child abuse injuries. She stated that she was a detective with the Joliet
Police Department. She interviewed the defendant. He told Odom that he worked at Backyard
Pools and had been there on September 17. He had a bad day at work as the truck he usually
drove was not working, he had forgotten his lunch, had not slept well, and was recovering from
bronchitis. He got off of work at 4 p.m. and went to a bar with Steven. He had approximately
seven beers. At first he told Odom “that he was intoxicated to the point of getting sick because
he had not had lunch.” He later altered the statement and said that he was not intoxicated, but
was “merely buzzed.” Upon returning home, he went outside to have a beer and smoke. When he
2 came back inside, Devin was crying and had blood on his nose and lip. The defendant cleaned
Devin up, comforted him, and then Devin went back to bed. The defendant spoke to Julie on the
phone shortly thereafter, but did not tell her about Devin’s injury. He then went to sleep on the
couch. He awoke, put on the jeans and T-shirt that he had worn the night before, and went to
work at 6:30 a.m., but had to come back because he forgot his keys. He was at work when Julie
called him about Devin. Later, the defendant admitted that he had also used cocaine that night.
The defendant asked Odom
“if Devin was found on the floor or if he was found lodged by the bed—between
the bed and the wall because he had gotten stuck there before and he was afraid
that maybe he had gotten his head stuck, his ears under the lip of the bed and that
that might have caused his death.”
Odom showed the defendant the previous photographs of injuries to Devin, and the defendant
said that Devin had fallen down the stairs or out of the crib in each of the photographs. The
defendant said that Devin was always getting bruised and injured. He told Odom that he had told
Julie “that DCFS [Department of Children and Family Services] was going to investigate her
because [Devin] looked like he had been hit with a bat and that she could lose her children.”
When speaking with Odom, the defendant referred to Devin as “that baby boy or that baby.”
Odom viewed the photographs of injuries to Devin and stated that the injuries were more
suggestive of intentional injuries due to their location. The officers took the jeans and white T-
shirt the defendant had been wearing.
¶5 Jose Campos testified that he was a police officer for the Wilmington Police Department.
On September 18, 2007, he assisted the Joliet Police Department in obtaining information on a
person who was employed at Backyard Pools. He entered the wooded area on the side of the
3 property as directed by Joliet detectives. He was to look “for some possible clothing that was
involved in an earlier crime.” He found a white T-shirt and a pair of Eddie Bauer jeans “wadded
up” in a pile approximately 100 feet into the wooded area. He called the Joliet police and
remained at the location until the Joliet police took custody of the clothing.
¶6 Three white T-shirts were taken into evidence, one the defendant was wearing when he
was taken in for the interview, one discovered in the woods by the defendant’s work, and one
found in the bottom of the garbage can at Julie’s house. The one found in the woods was tested
in the crime lab. Kelly Krajnik testified that she is a forensic scientist for the Illinois State Police
Joliet Forensic Science Laboratory. She tested stains on a white T-shirt and did not find any
blood. However, Lyle Boicken, a forensic scientist for the Illinois State Police crime lab testified
as an expert in forensic sciences, specifically biology and DNA. He retested the stains for blood,
and the test indicated blood was present. David Turngren testified as an expert in forensic
science and DNA. He conducted DNA analysis on the T-shirt and compared it to the DNA
profiles from Julie, Devin, and the defendant. The DNA on the T-shirt matched the defendant.
Another male DNA profile on the T-shirt was identified and Devin could not be excluded.
¶7 Devin’s father, Bryan Owens, testified that he was also the defendant’s best friend. He
testified that Devin was not accident prone. Prior to Devin moving in with Julie and the
defendant, Bryan did not notice any injuries on Devin. However, after they moved in, he noticed
that Devin had different bruises or injuries about every week. The injuries stopped when the
defendant moved out of the house for a couple of weeks, but resumed and became more severe
when he moved back in. Bryan took photographs of the injuries, and they were presented in
court. When Bryan asked Julie about the injuries, she relayed whatever explanation the
defendant had told her. He started taking the photographs because he thought that if Devin was
4 falling often and receiving injuries, Julie and the defendant must not be watching him well. He
planned on presenting the photographs during his custody case for the children. After speaking
with his divorce lawyer, he decided not to contact DCFS. No injuries occurred while Devin was
with Bryan. Bryan always checked Devin for injuries when he was with him, but did not notice
any on that day. Mark Owens, Devin’s grandfather, had seen him earlier in the day on September
17, 2007, and noted that Devin had no injuries and was playing like normal. Two other witnesses
testified that on previous occasions Devin had been left in the defendant’s care while they left the
house with Julie. On each occasion they arrived back at the house and found that Devin had
sustained injuries.
¶8 Dr. John Scott Denton testified that he was a forensic pathologist and was qualified as an
expert in forensic pathology with a concentration in child injuries. Dr. Bryan Mitchell performed
the autopsy. Denton was covering Mitchell’s prior cases after Mitchell’s death and had reviewed
his autopsy report. He stated that Mitchell documented 51 separate and external injuries to
Devin, 30 to 35 of the injuries were to Devin’s head and face. Mitchell had found that the
injuries were caused by multiple instances of blunt force trauma. Denton stated that the injuries
were inconsistent with an accidental fall in the bathroom. Denton stated that the injuries were
likely fatal in combination, but that the most severe injuries were skull fractures and bruising on
his forehead. Had these injuries occurred 12 to 24 hours before Devin’s death, they would have
been symptomatic. Denton agreed with Mitchell’s findings and conclusions and found that Devin
“died from cranial cerebral injuries due to blunt trauma to the head.” He also stated that Devin
likely sustained child abuse prior to this as well based on older injuries. The State showed
Denton photographs of Devin’s previous injuries that had been deemed accidental falls. Denton
stated that he did not believe the injuries were consistent with falling and instead were inflicted
5 injuries. After opening Devin’s stomach, Mitchell noted that the pasta that he had eaten was still
intact. Because of this, Denton opined that Devin died within a maximum of three hours after he
ate the pasta.
¶9 Dr. John Plunkett testified for the defense as an expert in forensic pathology and the
evaluation of infant injuries. He was a coroner for several Minnesota counties. He reviewed the
autopsy report performed by Mitchell and the police report. Plunkett testified that Mitchell could
have provided more information by examining all of the bruises on Devin to a higher degree to
determine whether some of the injuries were older. Plunkett believed that some of the bruises
looked older from the photographs, but could not say without looking at them microscopically.
Plunkett stated that he would have done more of a microscopic examination than Mitchell.
Mitchell concluded that Devin’s “death was the result of cranial cerebral injuries due to multiple
blunt force trauma to the head.” Plunkett stated that he believed that was “a reasonable
conclusion” and “probably” would have been his conclusion as well. However, Plunkett stated
that he could not make such a conclusion to be a “reasonable certainty.” He stated,
“If Devin had simply been found dead for example on the floor or on the bed and
there was no evidence that he had been moved, then it would have been my
conclusion to a reasonable medical certainty that blunt head trauma caused his
death.
However, because of the position his body was found as described in the
police investigative reports, wedged upside down between the bed frame and the
wall, it’s at least possible that Devin, in fact, died as a result of what’s called
positional *** asphyxia, in other words, being unable to breathe because of the
position of his body.”
6 Plunkett stated that none of Devin’s injuries in and of themselves would have necessarily been
fatal. While Plunkett agreed that Devin’s injuries were extensive, he also stated that the position
in which the body was found also would have made the injuries to his head and neck look worse
because of the settling of the blood. Plunkett also stated that if Devin had fallen and hit his head
in the bathroom, it could have killed him, though it was unusual for such to occur. Plunkett stated
that, if Devin’s death was caused by blunt force trauma instead of asphyxiation, the injuries
Devin sustained likely happened within 24 to 48 hours of his death, based on the police reports,
Plunkett stated he likely sustained the injuries within 12 hours of his death. On cross-
examination, Plunkett stated that “[t]o a reasonable medical certainty, Devin’s death is a
homicide.” In his notes, Plunkett had written, “someone beat the shit out of Devin.” However,
Plunkett stated that, though he thought it was clear that Devin had been beaten, he could not
“conclude *** with a reasonable degree of scientific and medical certainty that the beating was
the actual cause of death.”
¶ 10 Steven testified that the defendant was his half-brother. On the night in question, Julie
came to the bar after the defendant went home. They stayed at the bar until around 1 a.m. Before
she drove him home to Morris, they stopped at Julie’s house to get Steven’s marijuana out of the
defendant’s car. After taking Steven home, Julie stayed for 15 to 20 minutes and then went
home. Once Julie returned home, she called Steven, which he thought was unusual because she
had never called to tell him she had returned home when she gave him rides on previous
occasions.
¶ 11 The defendant testified that he started seeing Julie in 2006 and noticed that Devin had
injuries. At that point, the defendant was never alone with Devin and was not living in the house,
but Bryan was. The defendant moved in with Julie in December 2006 and Bryan moved out in
7 January 2007. The defendant stated that he and Devin were like father and son. He observed
Devin hurt himself approximately three times during the summer of 2007, but the injuries were
not severe. The defendant testified that the photographs of the injuries that the State had
introduced did not happen in his care. He saw injuries to Devin, but was not present for any of
them. The defendant said that Julie would spank and cuss at Devin when disciplining him. He
never told the police about Julie disciplining Devin or the injuries Devin had sustained. He told
the police that Julie was a great, patient mother and never hit or touched the children. The jeans
found by his work were not his because he had never owned a pair of Eddie Bauer jeans.
¶ 12 The court found the defendant guilty. In doing so, the court stated, “The defense believes
sufficient evidence exists to suggest an accidental death, specifically a fractured skull from an
accidental fall in the bathtub or positional asphyxia when Dev[i]n was accidentally wedged
upside down between the wall and his bed or a combination of those events.” He was sentenced
to 52 years’ imprisonment. On appeal, the defendant argued that he was not proven guilty
beyond a reasonable doubt, the court abused its discretion in allowing the State to present
evidence of prior physical abuse, and the defendant’s sentence was excessive. People v.
Knowles, 2012 IL App (3d) 110015-U. We affirmed. Id. ¶ 39.
¶ 13 On January 16, 2013, the defendant filed a pro se postconviction petition. The defendant
contended that his constitutional rights were violated, stating,
“Officer Campos testified that after speaking to the Joliet detectives, he
was asked to go out to the defendant’s workplace, Backyard Pools and look for
some clothing possibly used in a crime. And then they gave Officer Campos a
description of the clothing—T-shirt and blue jeans. ***
8 Neither the Joliet Police Department Detectives, or the prosecution
disclosed who the person was that gave them this description of the clothing and
the location where to find them. No person in the police report gave a description
of the clothes used in the crime and the location where to find them. Julie Miller
and defendant’s brother was the last persons to see defendant, neither one of them
gave the police a description of the clothes defendant had on that night. And
defendant testified the next morning he put back on the same clothes he had on
the night that Devin was killed. There’s no way the Joliet Police Department
Detectives could know the description of the clothes without someone having
supplied it—there’s also no way they would know the location where to look for
the clothes without someone telling them. The information of who told them was
withheld from the defense.”
The defendant further alleged that appellate counsel had failed to raise this issue. The
defendant’s petition was not ruled on within 90 days, and the petition was advanced to the
second stage.
¶ 14 In its amended postconviction petition, defense counsel contended that trial counsel was
ineffective for (1) failing to stipulate to the cause of death, (2) calling an expert, Plunkett, that
affirmatively proved the cause of death, (3) failing “to properly investigate the source of a tip
leading the police to search the woods behind [the defendant’s] place of work that contained
incriminating evidence,” and (4) failing to “subpoena or utilize the cellular phone records
concerning telephone calls on the night of Devin’s death between [Julie] and [Steven], which
could substantiate [the defendant’s] timeline of events thereby undermining her claims of
innocence” and “cellular tower records evidencing [Julie’s] whereabouts and thereby
9 undermining her claims of innocence.” The petition also alleged appellate counsel was
ineffective for failing to raise these issues. The State filed a motion to dismiss.
¶ 15 The matter came before Judge David Carlson to hear the State’s motion to dismiss on
August 24, 2017. Judge Carlson stated,
“The expert in this case, Doctor Plunkett, I used Doctor Plunkett when I was a
defense attorney in a case, *** and I just want to make a record of that as it relates
to that.
I don’t know if that causes anyone—I can tell you this, there was an issue
with the payment of his fees, and Doctor Plunkett complained about me to the
ARDC, so I just wanted to make sure that the record is clear on that.
I don’t think it has any affect on my ability to rule in this motion, but I did
have obviously contact and personal communications with Doctor Plunkett.”
The parties then continued arguing the motion. The court asked defense counsel if he had
discovery on the petition, and then said,
“Why don’t we do this, why don’t we go out a couple of weeks so I can go
through all the transcripts. And then if you guys want to supplement anything, if
you find a police report or if you—to save you a trip out here, if you talk to [the
State], and [State] you can always just give it to me and we will put it on the
record and then I can review that as well.”
Defense counsel mentioned the cell phone records, and the court then said,
“If you wanted to supplement the record with something else, I suppose I can do
that too. If you’re saying the cell phone records are important because there was
conflicting statement where she said she was—whatever it may be. If you have a
10 police report to that affect, then perhaps it’s not really bootstrapping, I guess it is,
that it was ineffective because the trial counsel didn’t ask questions on cross
examination, I don’t know, but I will give you that opportunity if you want to do
that.”
¶ 16 On November 16, 2017, the parties came back to court, again on the State’s motion to
dismiss. It does not appear from the record that any of the parties filed any supplementary
documents before this time. Judge Carlson stated,
“I raised this issue before. And in reading the transcripts, I’m really on the fence
on this. And I’m gonna tell you why ***. Not necessarily on the merits of where
we’re at, but I want to raise the issue about Dr. Plunkett.
And I need—just to refresh everyone’s memory, I—when I was in private
practice [I] used the services of Dr. Plunkett. And there are a couple of things in
going through the pleadings, as well as the transcripts in this case that you know
sometimes we just get a feeling? And as a Judge, the last thing you want is for
that feeling to interfere with your ability to make a reasonable and rash decision—
irrational decision, not rash.
I guess the easiest thing to do is to just say, you know what, I’m not going
to deal with the post-conviction matter, I’m gonna send it—because it deals with
Dr. Plunkett and that’s one of the major issue, obviously, in your petition. And I
would send it over to Judge Goodman. ***
[Defense counsel] under your petition, if I were to grant your request to
proceeding to a third stage, doesn’t that require me, then, to essentially look at
some of the factual issues surrounding Dr. Plunkett’s testimony?
11 Trust me, I don’t want to do this. I don’t want to prolong anything, but I
just, I have a feeling about it and I want to just make sure I’m clear before I make
my decision as to whether or not to recuse myself on this.”
Defense counsel stated, “[I]s it possible that we can go forward to the third stage in all of them
except the one that you’re thinking about recusing[?]” Judge Carlson stated,
“Dr. Plunkett? Here’s the only thing, I don’t want to necessarily make you make a
decision ***. It may and I don’t want to say this, hypothetically speaking, it may
be one of your better points, at least to get to the third stage. And I don’t want you
to waive that issue simply because you want me to hear this.”
Judge Carlson stated that he did not want the case to be sent back because he had preconceived
notions about the expert, stating, “while I think I can put certain feelings aside, there are certain
things that came up in the testimony that struck a cord with me.” Defense counsel asked Judge
Carlson if he could recuse himself on just that one issue. Judge Carlson stated that it did not
think “a judge can do a post-conviction petition piecemeal.” Judge Carlson then said, “just being
completely honest with everybody, I don’t know how much of it is my preconceived views of the
testimony of Dr. Plunkett, as well as the actual testimony of Dr. Plunkett, as well as what may
come up in a third-stage hearing.” Defense counsel stated, “Can I ask, if we were to waive those
issues, I am not saying we are, but if we were going to waive the issue about Dr. Plunkett and the
stipulation matter, would you be inclined to go forward on the third stage on the other issues?”
Judge Carlson replied,
“I don’t know if I can make that—that’s almost like an advisory opinion on the
motions. Because right now as they’re pled, all of those things are in there and I
don’t know if I can say, well, if you took this out, I might do it, but if you
12 didn’t—because, quite frankly, [the defendant], you will be back here for years
dealing with this, if I do it that way, I think.”
Judge Carlson continued,
“[T]he next thing that happens is the appellate court says, well, [defense counsel]
withdrew those issues because the Court basically gave him the wink, wink, nod,
no[d], that, oh, I will give you your hearing on these two, as long as you don’t go
forward with the other one. You see what I’m saying?
So here is what I’m inclined to do, I would probably send it over to Judge
Goodman who deals with a lot of the issues, the post-conviction issues. If you
want to talk about it with [the defendant], [defense counsel] and just get a status
date on it.”
Defense counsel then said, “My understanding, then, is there is nothing I can say or do to get ***
you [to] keep the case is what you’re telling me right?” Judge Carlson said,
“I just don’t feel right because as much as—everybody has a due process interest
in this. [The defendant], as much as you have a due process interest in this, the
State has it as well. And I don’t want anyone to ever look at my decision-making
on this years from now as it being clouded by some of my personal opinions
about people who testified in this case, if you know what I mean.”
¶ 17 The case was reconvened in front of Judge Goodman in March 2018. The court asked the
parties if they had any further argument, and they said no. The court then granted the State’s
motion to dismiss, stating:
13 “I did have an opportunity to read in its entirety what the factual procedural
history is, as well as the facts and circumstances of this case as it proceeded to
trial, and the nature of the charges.
So one of the things—I am going to pull this out—that basically what we
are dealing with is that, for the second stage, rather [the defendant’s]
constitutional rights were violated, and he stipulates to a number of things that he
is raising, basically ineffective assistance of counsel, the investigation of the
source of the tip, and calling a witness, and the failure—or the failure of counsel,
that he stipulated to the cause of death, and in this particular case, when you are
talking about the cause of death—and I’m—I’m—to put this lightly, but from
what I could gather, even the defenses call a witness that indicated the cause of
death as it relates to the elements of the crime, I guess, to determine whether or
not it was either an accidental or murder or intentional and such.
With all of that, the Court in a second stage is not to weigh a balance to
evidence, but does it have a substantial showing of constitutional violation and
whether or not—and we see in these types of cases that there was something that
could not have been raised procedurally previously and I can’t—based on all of
the cases that I have read, and we know we have cases with DNA. We have cases
with false confessions and such, but nothing that I have read thus far—although I
can understand the concern here of what occurred at trial, but for the purposes of a
second stage nothing is—this is not new. It’s not based on innocence in this
particular case. It’s not based on new information that was—could not have been
raised at an earlier proceeding.”
14 ¶ 18 II. ANALYSIS
¶ 19 On appeal, the defendant argues (1) his claims of ineffective assistance of counsel
established a substantial showing of a constitutional violation and should have proceeded to a
third-stage evidentiary hearing, (2) Judge Carlson should not have recused himself, and (3) the
circuit court erred in dismissing the petition based on its conclusion that the defendant’s claims
could have been raised earlier.
¶ 20 1. Substantial Showing of Ineffective Assistance of Counsel
¶ 21 Under the Post-Conviction Hearing Act (Act), a defendant may file a petition alleging
that his constitutional rights were substantially violated in the proceedings which resulted in his
or her conviction. 725 ILCS 5/122-1(a)(1) (West 2018). The petition must be verified by
affidavit (id. § 122-1(b)), and the allegations in the petition must be supported by affidavits,
records, or other evidence or explain its absence (id. § 122-2). “The dismissal of a postconviction
petition is warranted at the second stage of the proceedings only when the allegations in the
petition, liberally construed in light of the trial record, fail to make a substantial showing of a
constitutional violation.” People v. Hall, 217 Ill. 2d 324, 334 (2005). “At this stage, ‘the
defendant bears the burden of making a substantial showing of a constitutional violation’ and ‘all
well-pleaded facts that are not positively rebutted by the trial record are to be taken as true.’ ”
People v. Snow, 2012 IL App (4th) 110415, ¶ 15 (quoting People v. Pendleton, 223 Ill. 2d 458,
473 (2006)). We review de novo a second stage dismissal. Hall, 217 Ill. 2d at 334.
¶ 22 When raising an ineffective assistance of counsel argument, the defendant must show:
(1) counsel’s performance fell below and objective standard of reasonableness, and (2) there is a
reasonable probability that, but for counsel’s error, the result of the proceedings would have been
different. Strickland v. Washington, 466 U.S. 668, 694 (1984).
15 “To satisfy the deficient performance prong of Strickland, a defendant must show
that his counsel’s performance was so inadequate ‘that counsel was not
functioning as the “counsel” guaranteed by the sixth amendment’ and, also, must
overcome the strong presumption that any challenged action or inaction may have
been the product of sound trial strategy. People v. Evans, 186 Ill. 2d 83, 93
(1999); [citation.] This is a high bar to clear since matters of trial strategy are
generally immune from claims of ineffective assistance of counsel. [Citations.] In
addition, even when a defendant can show deficient performance, the second
prong requires the defendant to show that he was prejudiced as a result. That is, a
defendant must show that counsel’s deficiency was so serious that it deprived him
of a fair trial.” People v. Dupree, 2018 IL 122307, ¶ 44.
¶ 23 In his postconviction petition, the defendant made four claims of ineffective assistance of
trial counsel, that counsel was ineffective for: (1) calling an expert witness, (2) failing to
stipulate to the cause of death, (3) failing to investigate a tip to the police, and (4) failing to
investigate cell phone records and cell tower records. The defendant also alleged that appellate
counsel was ineffective for failing to raise these issues on direct appeal. We will consider the
adequacy of each claim in turn.
¶ 24 a. Calling the Expert Witness
¶ 25 The defendant first contends that trial counsel was ineffective for calling Dr. Plunkett as
an expert witness. The defendant contends that “[n]othing from this expert’s testimony had any
exculpatory value” and counsel knew or should have know that Plunkett’s testimony would be
harmful to the defendant’s defense. We find that the decision to call Dr. Plunkett as an expert
amounted to trial strategy as it cast doubt on multiple pieces of the State’s evidence. First,
16 Plunkett’s testimony cast doubt on how well Mitchell conducted the autopsy. Plunkett stated that
Mitchell should have examined all the bruises microscopically to determine whether some of the
injuries were older. Based solely on photographs, Plunkett believed that some of the bruises
looked to have been previously inflicted.
¶ 26 Second, Plunkett called into question the cause of death. Plunkett stated that Mitchell’s
conclusion that Devin died as a result of cranial cerebral injuries due to multiple blunt force
trauma to the head was a “reasonable conclusion” and that he “probably” would have came to the
same conclusion. However, Plunkett did not think that such a conclusion was a “reasonable
certainty.” Based on the position that Devin was found, Plunkett believed that he could have died
from positional asphyxia. Plunkett noted that none of the injuries in and of themselves would
have been fatal, and that the position of the body likely made some of the injuries look worse
than they were. While on cross-examination, Plunkett stated that “[t]o a reasonable medical
certainty, Devin’s death is a homicide” and had written that “someone beat the shit out of
Devin,” he could not “conclude *** with a reasonable degree of scientific and medical certainty
that the beating was the actual cause of death.”
¶ 27 Third, Plunkett also gave a larger range of the time for the infliction of the injuries,
including a period of time when Julie or Bryan were alone with Devin. Plunkett stated that the
injuries could have been inflicted within 24 to 48 hours before Devin died, but likely happened
within 12 hours of his death. The fact that a given trial strategy ultimately proved unsuccessful
does not constitute proof of ineffective assistance of counsel. People v. Milton, 354 Ill. App. 3d
283, 290 (2004). Based on all of the potentially positive expert opinions that Plunkett offered,
counsel’s decision to introduce him as an expert amounted to trial strategy and was not
unreasonable.
17 ¶ 28 b. Failure to Stipulate to Cause of Death
¶ 29 The defendant next contends that trial counsel was ineffective for failing to stipulate to
the cause of death. We find that this also amounted to trial strategy. Counsel sought to question
the cause of death and the validity of the autopsy. As stated above, Plunkett provided a potential
alternative cause of death and cast doubt on some of the methods that Mitchell had used,
particularly his failure to take a microscopic look at the bruises to determine their age. Had
counsel stipulated to the cause of death, the potentially helpful testimony of Plunkett would not
have been introduced. The court when rendering its decision made it clear that it understood that
the defendant was attempting to argue that Devin’s death may have been accidental, stating:
“The defense believes sufficient evidence exists to suggest an accidental death, specifically a
fractured skull from an accidental fall in the bathtub or positional asphyxia when Dev[i]n was
accidentally wedged upside down between the wall and his bed or a combination of those
events.” Moreover, the defendant provided no indication that the State would have agreed to
stipulate to the cause of death if trial counsel had wanted to do so.
¶ 30 c. Failure to Investigate a Police Tip
¶ 31 The defendant also alleges ineffective assistance of trial counsel for counsel’s failure to
investigate a police tip that caused the police to search the defendant’s work for clothing. The
defendant failed to attach evidence to support this claim as required by statute or explain why he
did not do so. 725 ILCS 5/122-2 (West 2018). After hearing arguments on the State’s motion to
dismiss the petition, the court gave the parties until the next court date to supplement the record
with any evidence to support its claims. The defendant did not do so. Nowhere in the record does
it state that the police received a tip. “[T]here can be no substantial showing of ineffective
assistance of counsel for failure to investigate *** if there is no evidence that the exculpatory
18 evidence actually exists.” Dupree, 2018 IL 122307, ¶ 37. Moreover, the defendant does not even
allege that the police actually received a tip and that counsel knew or should have known about
the existence of a tip. The defendant solely concludes that there must have been a tip in order for
the police to search the location. He points to Campos’s testimony that he was told by detectives
to look for the clothing. The defendant states, “[s]uch testimony begs the question, where did
these officers get this information if not from a tip.” This amounts to speculation. There are other
reasonable explanations for this information. For example, when interviewed by the police, the
defendant told them that that morning he put on the same clothes he was wearing the night
before (a T-shirt and jeans) and then went to work. The officers could have sought to investigate
this claim by determining whether the defendant stashed any similar clothing that he had actually
worn the night before. Because the allegation was not well-pleaded and was not supported by
evidence, the defendant failed to make a substantial showing of a constitutional violation.
¶ 32 d. Failure to Investigate Cell Phone and Cell Tower Records
¶ 33 Next, the defendant alleges that trial counsel was ineffective for failing to investigate
Julie and Steven’s cell phone records as well as the cell tower records to determine where Julie’s
phone was located on the night of the incident. The defendant concluded that the records “could
substantiate [his] timeline of events thereby undermining [Julie’s] claims of innocence.” Again,
the defendant’s claim is not supported by any evidence to show that these records existed or
would have been helpful to his case. See 725 ILCS 5/122-2 (West 2018); Dupree, 2018 IL
122307, ¶ 37. The court stated that it would allow the defendant to supplement the record with
the records, but the defendant, again, did not do so, nor did he explain his failure to do so. There
is no basis to conclude that trial counsel’s investigation of the records would have produced
evidence useful to the defense. It is pure speculation that obtaining the records would have
19 shown that Julie arrived home at an earlier time than her testimony. People v. Brown, 2017 IL
App (1st) 150203, ¶ 30. Therefore, the defendant did not make a substantial showing of
ineffective assistance of trial counsel. 1
¶ 34 2. Judge Carlson’s Recusal
¶ 35 Next, the defendant contends that Judge Carlson should not have recused himself. He
contends that he was prejudiced by the recusal because Judge Carlson “intended to permit the
proceedings to proceed to a third stage review,” the recusal deprived the defendant of discovery,
and resulted in “the cursory oral ruling denying [the defendant’s] petition from Judge Goodman
sans reliance on caselaw, statutes or even thorough reasoning.”
¶ 36 “A judge should disqualify himself or herself where the judge’s impartiality might
reasonably be questioned ***.” People v. Kliner, 185 Ill. 2d 81, 169 (1998). “[T]he trial judge is
in the best position to determine whether he or she is prejudiced against the defendant.” Id.
“Whether a judge should recuse himself is a decision in Illinois that rests
exclusively within the determination of the individual judge, pursuant to the
canons of judicial ethics found in the Judicial Code. All judges in Illinois are
expected to consider, sua sponte, whether recusal is warranted as a matter of
ethics under the Judicial Code.” (Emphasis in original.) In re Marriage of
O’Brien, 2011 IL 109039, ¶ 45.
¶ 37 We find no error in Judge Carlson’s decision to recuse himself. The record makes clear
that Judge Carlson was concerned about his impartiality considering his past with Dr. Plunkett
1 The defendant also alleges that appellate counsel was ineffective for failing to raise the above four issues in the defendant’s direct appeal. Because the issues do not have merit, we cannot say that appellate counsel’s failure to raise them was patently erroneous. See People v. Barnard, 104 Ill. 2d 218, 231 (1984) (“it is not incompetence for counsel to refrain from raising issues which, in his judgment, are without merit, unless his appraisal of the merits is patently wrong.” 20 and took great care in making his decision. He stated, “while I think I can put certain feelings
aside, there are certain things that came up in the testimony that struck a cord with me.” Stating,
“just being completely honest with everybody, I don’t know how much of it is my preconceived
views of the testimony of Dr. Plunkett, as well as the actual testimony of Dr. Plunkett, as well as
what may come up in a third-stage hearing.” Judge Carlson stated,
“I just don’t feel right because as much as—everybody has a due process interest
in this. [The defendant], as much as you have a due process interest in this, the
State has it as well. And I don’t want anyone to ever look at my decision-making
on this years from now as it being clouded by some of my personal opinions
about people who testified in this case, if you know what I mean.”
The record shows that he was concerned about his impartiality and whether that impartiality
would be questioned later on. It was entirely within Judge Carlson’s determination to recuse
himself, and he did not err in doing so.
¶ 38 In coming to this conclusion, we reject the defendant’s claim that he was prejudiced by
Judge Carlson’s recusal. First, the only prejudice determination Judge Carlson needed to make
was whether his history with Plunkett may have affected his impartiality and thus prejudiced the
defendant. A judge need not consider whether a defendant would suffer prejudice because he
recused himself. See Kliner, 185 Ill. 2d at 169. Second, even so, there is no merit to the
defendant’s claims of prejudice. There is no indication in the record that Judge Carlson intended
to advance the defendant’s claims to the third stage. The entire conversation about the third stage
was speculative with regard what would happen with the Plunkett claim and the evidence the
court would have to hear regarding that claim if the petition advanced to the third stage. Defense
counsel even asked Judge Carlson if he would advance the claims to the third stage if counsel
21 dropped the Plunkett contention, and Judge Carlson refused to speculate. Moreover, Judge
Carlson specifically gave the defendant time to supplement the record with any other evidence he
wanted before the next court date. The defendant did not do so, nor did the defendant ever ask
Judge Goodman if he could do so after Judge Carlson recused himself. Therefore, the defendant
was not deprived of discovery. Third, we would be remiss if we did not note that, if Judge
Carlson did not recuse himself and subsequently the defendant’s petition was denied, the
defendant undoubtedly would have questioned his decision not to recuse himself.
¶ 39 3. The Court’s Dismissal of the Petition
¶ 40 Lastly, the defendant contends that the court erred in dismissing the petition when it
believed that the defendant’s arguments could have been raised earlier.
“At the second-stage proceedings, we review the trial court’s decision
under a de novo standard of review. [Citation.] Under the de novo standard of
review, the reviewing court does not need to defer to the trial court’s judgment or
reasoning. [Citation.] De novo review is completely independent of the trial
court’s decision. [Citation.] De novo consideration means that the reviewing court
performs the same analysis that a trial judge would perform.” People v. Tyler,
2015 IL App (1st) 123470, ¶ 151.
As stated above (supra ¶¶ 21-34), the defendant failed to make a substantial showing of a
constitutional violation for any of his alleged claims. Therefore, the court properly granted the
State’s motion to dismiss, regardless of its reasoning for doing so.
¶ 41 III. CONCLUSION
¶ 42 The judgment of the circuit court of Will County is affirmed.
¶ 43 Affirmed.