2013 I LApp (1st) 111351 THI RD DI VI SI ON October 16, 2013

No. 1-11-1351 THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appellee , v. RI CARDO HARRI S, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) Appea l from the Circuit Court of Cook County 99 CR 18554 Honora ble Colleen McSwee ney -Moore , J udg e Presiding
.

J USTI CE MASON delivere d the judg ment of the c ourt, with opinion. J ustices Quinn and Pucinski conc urre d in the judgme nt and opinion.
OP INION ¶ 1 Followinga jury

trial, defe ndant Ricardo H arr is was convicte d of two counts of murde r, one count of

attempted murde r and one count of a g g ravated batter y with a fire arm. Ha

rris wa s sentenc ed to death on the murder c ounts, and to consec utive terms of 30 year s eac h on the
rema ining c ounts. The I llinois Supreme Court af firmed Ha

rris' s convictions and sente nce on direc t appea l. People v . Harris , 225 I ll. 2d 1 (2007). Har ris' s death sente nce w as subseque ntly commuted to natura l life. ¶ 2 Har

ris, assisted by

counsel, filed a

postconviction petition. The circ uit court g rante d the State' s motion t o dismiss the petition. On appea l, Harr is contends that the cir cuit court e rre d in dismiss ing the petition because he made a substantial showingthat (1) the State violate d its1-11-1351

constitutional duty

to disclose exculpatory

evidenc e, (2) he re ceive d ineffe ctive assistanc e of tria l counsel, a nd (3) his wa iver of the rig ht to counsel duringa sig nificant portion of pr etrial proce eding s was not knowing , he wa s not competent to repr esent himself, a nd there was a bona fide doubt reg ardinghis fitness to stand trial. For the rea sons that follow, we a ffirm the judg ment of the c ircuit court of

Cook County
. ¶ 3 BA CKGROUND ¶ 4 On May

13, 1999, at appr ox imately 7:25 p.m., the Oak L awn police depar tment rec eived
a re port of a shootingat the Extra Value liquor store in Oak L awn, I llinois . Police office rs respondingto the call discove red that four per sons had bee n shot, store employ ees D ipak and Ambalal Patel and c ustomers Christina and Hele n Chisnick. The victims were transporte d to the hospital, where Dipak and A mbalal died fr om their wounds. ¶ 5 Christina and Hele n went to the liquor store a round 7:15 p.m. Christina parked he r van in the par king spot to the rig ht of the store e ntranc e. The re w ere no other c ars in the pa rkinglot and only Dipak and A mbalal wer e inside the store
. ¶ 6 Christina and Hele n walked down the aisle with the be er c oolers and A mbalal walke d over to a ssist t hem while Dipak r emained be hind the counter . Christina took a case of bee r fr om the cooler and turne d to see Dipak walkingtoward the m and a man w ith a g un behind him. The man shot Dipak, then shot Ambalal a nd Christina. Helen he ard a g unshot and saw Amba lal' s chest turn bloody , then saw Christina fa ll to the floor. Helen tur ned and sa

w the gunman, who was standingabout five f eet a way . Helen looke d at the gunman' s fac e for sever al sec onds. He then shot her.
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¶ 7 Helen pr etende d to be dea d for a bout 20 seconds and the n went to the fr ont of the store. She saw a man and a

woman, neither

of whom had be en in the store when she a nd Christina
arr ived. She aske d the woman to ca ll 911 and the police a nd para medics ar rived shortly there afte r. ¶ 8 Christina, who was shot twice, c ommunicated brie fly with an offic er in the e merg ency room befor e under g oing sur g ery . She told the office r that the gunman was a black male , approximately

5 fee t 9 inches with short, natura l, black hair . A detec tive also interviewe d Helen in the emer g ency

room while she wa s beingtreated for a single g unshot wound to the abdomen. Helen told the de tective that the of fende r wa s a blac k male, appr ox imately 5 fee t 11 inches and 170 pounds, and he w as we aringa blac k shirt or jacke t, black pants, a nd black shoe s. The next day , the detec tive interviewe d Helen a t leng th and, with her a ssistance, pre pare d a composite sketch of the g unman. ¶ 9 In the meantime, de tectives intervie wed other witnesses at the sc ene. Jesse L ee, Jr., went to the liquor store shortly befor e the shooting s. Inside the store, he saw a black male and a Hispanic male . When L ee le ft the store, he saw two other vehicles in the pa

rkinglot. A Hispanic woma

n and a c hild were in one vehicle , and a bla ck male w as sitting in the drive r' s seat of the other

vehicle. ¶ 10 L ee dr ove to a g as station down the stree t and had be en ther e for about 10 minutes when he hea rd the sire ns and saw the police vehic les at the liquor store. H e re turned to the store , told police about the thr ee me n he had se en, and a ssisted the police in prepa ringcomposite sketche s of the men.
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¶ 11 L arr

y L ozano and Heather Dor an both went to the liquor store shortly afte r the shooting s
occur red a nd befor e police a

nd para medics ar rived. L ozano told detectives that one of the male victims tol d him the offende rs wer e two blac k males. Dora n told police she saw two me n runningon Cicero Ave nue bef ore she pulled into a g as station to buy cig are ttes. Five minutes later, D oran dr ove to the liquor store a nd went inside, whe re one of the fe male victims told her that four pe ople had be en shot by two black men a

nd asked he r to ca ll 911. ¶ 12 On May

15, afte r re adingabout the liquor store inc ident in the newspa per, F rank Sar elli contac ted the police a

nd informed them he had information about the shootings. Sare lli tol d the police he w as living at the Aloha Motel, five bloc ks from the Extra Value liquor store. Sare lli met Har ris at the motel on May

11 and smoked some c rac k coca ine with him. Harris then g ave Sarelli money

to procure more drug s. Sarelli obtained drug s for Ha rris three separ ate times at Har ris' s reque st on May

11 and 12. ¶ 13 After

Sarelli delivere d drug s to Harr is for the third time, Har ris told Sarelli he had a

g un he wa nted to sell. Harr is showed Sare lli a black, .40-c aliber G lock handgun. Sarelli made c alls to severa l drugdeale rs he kne w but was una ble to sell the g un. ¶ 14 Har

ris came to Sarelli' s room the morningof May 13 and aske d for more coca ine. He also told Sarelli that he was no long er inter ested in selling the gun beca use his brother a

nd cousin
wer e cominginto town from Michig an and the y might wa nt the g un. In a re cordingof the initial call Sare lli made to police, he de scribed the g un as " a Glock 40 c aliber se miautomatic pistol, 13 shot clip." At the time Sare lli first contacted police , there was no re war d posted for infor mation

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relating to the shooting s. 1 ¶ 15 On the basis of the information provided by Sarelli and fr om information obtained fr om the Aloha Motel, police wer e able to obtain a picture of Ha rris fr om authorities in Michiga n, wher e Ha rris had e scape d from police c ustody six day s befor e the shooting s. On May 15, 1999, detec tives visited Helen and show ed her a photo ar

ray that included the pictur e of H arr is they had obtained. He len selec ted Har ris' s photo and identified him as the pe rson who shot her. ¶ 16 Also on May

15, J ean Janewa

y contac ted the police a

nd told them she and her

husband had g one to the liquor store shor tly afte r the shooting s. Her husba nd, Melville, parke d the ca r to the rig ht of a va

n that was in the pa

rkinglot. The van obscur ed Janeway ' s view of the store entra nce. Janewa

y stayed in the passe ng er se at of the c ar while her husba nd went inside the store. Melville re mained in the store f or two to three minutes. W hile she wa ited in the car , J anew ay saw a man walkingon the sidewa lk in front of the store . J anew ay did not see him until he wa lked past the fr ont of the van. The man stopped and a ppear ed surpr ised to see he r, then walked be tween he r ca

r and the van. ¶ 17 Approxim ately

one minute later , J anew ay' s husband ra n back to the c ar a

nd told J anew ay about the victims he found inside the store . Her husband said he did not see anyone else in the store. Althoug h she did not say any thing to police that eveningabout the man she had see n, two day s later Janewa

y told the police that she re cog nized the composite sketch that had be en broadc ast on television the nig ht before as the man she had see n outside the store that da y .
By the time of trial, Sare lli testi fied that he expected to re ceive a re war d of $2000 to 1 $2500 if Har

ris was c onvicted. -5-1-11-1351

J anew ay subsequently

selec ted Har

ris' s photo from a photo ar ray . ¶ 18 On May

16, detec tives travele d to Flint, Michiga n, to interview Ha

rris' s brother, Roderick, whose name was on the Aloha Motel re g istration car d and who wa s initi ally a suspec t in the case . On May

23, a dete ctive visited Christina in the hospital, where she was still
rec overing , and showe d her the same photo ar ray that had bee n shown to Helen, e x cept that a picture of Har ris' s brother ha d been substituted for one of the other photos. Christi na sele cted Har ris' s photogr aph fr om the arr ay as the pe rson who shot her. Prior to identify ing H arr is in the photo arra

y , Christina had not seen a ny news c overa g e of the incident and she had not see n Har ris' s photo on broadca st television or in the newspape r. ¶ 19 On August 4, 1999, Harr is was ar rested in Char lotte, North Carolina. He had a N orth Carolina identification card c ontaining his photo and the name Joaquinn Alex ander McCall, and a socia l security

car d with the same name. Har ris was e x tradited to I llinois , wher e the Oa k L awn police conduc ted a phy sical lineup on August 7. Christi na and H elen view ed the lineup separ ately . In both viewing s, eac h subject in the lineup wa lked up to a two-w ay mirror. Christina and Hele n both asked for Har ris to approa ch the mirror a sec ond time. Both of them identified Ha

rris. Sare lli and J anew ay also viewe d the lineup sepa rate ly and both identified Har ris. ¶ 20 Har

ris was initially

repr esente d by

an attorne y

with the public defe nder' s office . Duringa hear ing on Ma

y 4, 2000, Har

ris reque sted the appointment of diff ere nt counsel bec ause he felt that his appointed counsel " did not want to respec t" a ny of the thing s Harr is thought would be helpful to his case and bec ause H arr is wanted a speedy trial. Har

ris further explained that he fe lt
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his appointed counsel wa s prejudice d ag ainst him because of his criminal history . The trial c ourt commented that if it wa s a matter of a per sonality

conflict, Ha

rris could try

to work that out with the public def

ender ' s office , but stated that Har ris' s only other options wer e to re tain private counsel or r epre sent himself. The tria l court advised H arr is to reconsider his request for

differ ent counsel a nd expressed conf

idence in the abilities and experience of Ha rris' s appointed counse l. Har ris proce eded w ith his i nitial counsel for more than a year afte r that hea

ring
. ¶ 21 On August 14, 2001, Harr is ag ain aske d for the a ppointment of differ ent counse l, stating that he had no tr

ust in his counsel and that he be lieved his counsel wa s workingag ainst him. Har ris' s primary

contention was that he believe d he had be en ar raig ned bef

ore he was for

mally indicted, base d on his understandingof diffe rent time stamps that appe are d on copies of documents he ha d rec eived. The trial court a ssured Ha rris that he ha d been indicte d by the g rand jury on August 12, 1999, and subsequently arr aig ned on August 16. ¶ 22 Har

ris reminded the court that he and his counsel we re at odds from the beg inning, beca use Ha rris wa nted a spe edy

trial so that the State would not have time to build a ca se ag ainst him, but his counsel told him that no attorney "w orth his salt" would take a client to a spe edy trial g iven the mag nitude of the c harg es fa cinghim. Harris stated that if the court would not appoint
new c ounsel, he would be forc ed to re prese nt himself beca use he did not trust his curre nt counsel. The trial court a dmonished Harr is that if he chose to repre sent himself, he would do so at his peril and would be at a tre mendous disadvantag e. The trial court g ave H arr is a few wee ks to consider his dec ision. ¶ 23 At the next st atus hea ring , Har ris told the trial court he ha d decide d not to repre sent
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himself beca

use he ha d limit ed ac cess to the law library and a ve ry

limit ed supply

of law books. The trial c ourt admonished Ha rris that it was not g oing to a llow him to vacillate reg arding whether to continue with appointed counse l and aske d if Har ris' s decision was f

inal. Har ris said that it was and that he and the two attorney s from the public de fende r' s office had spoken pr ior to the hea ringand they

wer e trying to r esolve the trust issue. ¶ 24 A fe w months later, howe ver, H arr is ag ain told the trial court that he wanted to discha rg e his attorney s and re prese nt himself beca use he did not trust either of them. Har

ris also reque sted the appointment of c ounsel other than f rom the public def

ender ' s office due to a c onflict of interest. Af

ter c onsideringHar

ris' s complaints, the trial court obse rved that the issue was re ally a disag ree ment over ta ctics or strategy , not a conf lict of interest. The trial court de clined to appoint
new c ounsel and a g ree d to rec onsider Ha rris' s motion t o repr esent himself. ¶ 25 The trial c ourt allowed H arr is to argue fa cts in support of his alleg ation that counsel ha d not acted in his best intere st. Defe nse counse l expl ained to the tria l court that Ha rris wa s initi ally cooper ative until he beg an to believe there was a conspirac y

ag ainst him that included defe nse counsel a nd the public def

ender ' s office and that eve ry attempt to demonstrate to Ha rris that his fea rs wer e unfounde d had fa iled. The trial c ourt consider ed Ha rris' s motion t o repr esent himself toge ther with anothe r leng thy motion Harris had pr epar ed asking for the a ppointment of a law profe ssor as his counsel. In denying both motions, the trial cour t found that (1) the alleg ations raised w ere either spur ious or perta ined only to trial tactics or strateg y , (2) de fense counsel ha d been zea lous in his repr esentation of Harr is, (3) Ha rris wa s attempting to c reate a c onflict of interest by

conjec ture a

nd meritless complaints, (4) no a ctual conf lict had bee n shown, and (5)
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Har ris would not be pre

judiced if de fense counsel c ontinued to repre sent him. Harr is then elec ted to proce ed pro se , but stated that he thoug ht it was unfair a nd that he wa s only

making that decision bec ause the court re fused to appoint alter native counse l. ¶ 26 Wit h respe ct to Har ris' s profe ssed desire to repre sent himself, the trial cour t admonished him, both verbally

and in writing , reg ardingthe nature of the c harg es, the possible pena lties, and the risks and re quirements of se lf-re prese ntation. The trial cour t also g ave H arr is additional tim e to consider his dec ision. ¶ 27 At the next hearing , Har ris repe ated his intention to procee d pro se and the tria l court re ad the admonishments ag ain. Har ris executed the wa iver of c ounsel in open cour t. As a final prec aution, the trial cour

t ordere d a beha

vioral clinica l examination (BCX) re g ardingHar ris' s fitness to stand trial and his compete ncy to make the de cision to repre sent himself. ¶ 28 Dr. Roni Seltz bergfrom F orensic Clinical Servic es conduc ted the B CX, which took months to complete. I n connec tion with reac hing he r opinion reg ardingHar ris' s fitness to stand trial and his ability

to decide to r epre sent himself, Dr. Seltzbergrevie wed voluminous documents, includingmedical r ecor ds that ref lected a history of substance abuse a

nd head injuries and fa iled to disclose a psychiatric history , transcr ipts of proce eding s befor e the tria l court, a nd motions filed by

Har ris, including a

leng thy handwr itten document detailinghis complaints ag ainst his appointed counsel. Dr Seltz bergalso interviewe d Har ris. The trial c ourt g rante d two continuance s to allow Dr. Seltzbergto complete her repor t. ¶ 29 In her r eport, Dr . Seltz bergexpressed her opinion that Harris wa s both fit to st and trial and compe tent to decide to r epre sent himself. Dr. Seltzbergwas fur ther of the opinion that
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Har ris had a ve ry

g ood understandingof the nature of the char g es and pr ocee dings a g ainst him, had the c apac ity

to assist counsel in his defense , and his choice to repre sent himself did not appea r to be ba sed on any

psy chotic proc ess or c og nitive disorder but, rather, on his own interpre tation of other matter s unrelate d to a psy chiatric disturbance . The trial c ourt then
acc epted Ha

rris' s waiver

of counse l. ¶ 30 Har

ris there afte r filed numer ous pro se motions, participated in hea ring s on those motions, conducted the de positions of five witnesses and r equeste d and re ceive d the appointment of seve ral e x pert witnesse s. Amongothers, Ha rris depose d Helen a

nd Christina, both of whom testified unequivoca lly

that he wa s the person who shot them as well as Dipak and Ambala l. Har ris also deposed Janewa

y , who identified him as the pe rson she saw in the parkinglot the night of the shootings. ¶ 31 After

Har ris was pe rmitted to procee d pro se , the trial cour t periodica lly

questioned him as to whethe r he w ished to continue to repr esent himself. Ha rris alwa y s responde d aff

irmatively
. ¶ 32 As the trial date approa ched, the trial court de cided to appoint private counse l for the limit ed purpose of addr essing ag ain Har ris' s claim that he ha d rec eived inef fec tive assistance from his prior c ounsel. Har ris' s appointed attorne y s elec ted to stand on the pre vious moti on and did not present any

supporting e vidence . Har ris' s attorney s informed the c ourt that, following discussions with Harris re g ardinghis right to testify in support of the alleg ations in his mot ion, Har ris stated that he did not wish to exercise that r ight. The motion was ag ain denied a nd private counsel wa s dismis sed. ¶ 33 A fe w months later, Ha rris told the trial cour

t he would like to rec onsider his dec ision to
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proce ed pro se beca

use he r ealized he wa s not able to eff ectively repr esent himself. The trial court late r appointed the same private counse l to repre sent Har ris at trial. Ove r the ne x t 10 months, Harris' s counsel re viewed a ll of the discover y , filed numerous motions, worke d diligently on mitigation, obtained the a ppointment of a sec ond investigator, wer e pre sent at the deposition of Dr. Otto Mac L in, the only defe nse expert, litigate d and won a motion to s uppress, and succ essfully

litigated a

motion to ex clude two of Har ris' s three pr ior convictions. ¶ 34 Har

ris ref used to coope rate with his appointed counsel in deve loping mitiga tion evidence in prepa ration for the sentenc ing pha se of his trial. Althoug h defe nse counse l repe atedly pursued family members a

nd others for

information re lating to mitigation, Harris e x presse d his desire to the trial cour

t that no miti g ation evidenc e be pr esente d. 2 ¶ 35 Har

ris' s trial commence d on J anuar y , 30, 2004. The State c alled a f irea rms expert who testified that the thre e bullets rec overe d duringthe investig ation wer e .40-c aliber, ja ckete d, Hydrashoc k hollow-point bullets, a disti nctive ty pe of a mmuniti on manufa cture d only by the Fe dera l Company . The bullets recove red f rom the store a

nd from Ambala l's body

wer e fire d from the same gun, and the f ive ca rtridg e ca ses re cover ed fr om the store could a lso have be en fired f rom the same gun. Eac h car tridg e had distinct elliptical firingpin impressions that are only left by the firingpin of a .40-c aliber ha ndg un manufa cture d by

the Glock Company
.

In Har ris' s direct a

ppeal, the supr eme c ourt observe d that despite Ha rris' s wishes, his 2 counsel ha d obtained var ious medical re cords. Addr essing Har ris' s claim that his attorney s were ineffe ctive for

failingto present this evidenc e in mitigation despite his contr ary direc tion, the court found c ounsel' s decision not to use the re cords to be r easona ble bec ause, a

mong othe r things, they

did not disclose that Harr is suffer ed fr om any neurolog ical disorder
. Harris , 225 I ll. 2d at 48. -11-1-11-1351

¶ 36 Pauline Z elko, an of fice r with the Ge nesee County sheriff ' s depar tment in Flint, Michig an, testified that Ha rris wa s in her custody

on May 7, 1999. At approximately 8 a.m. that day , Har ris disarmed Z elko, took her f irea rm, and e scape d. Z elko' s firea rm was a .40-ca liber semiautomatic Glock ha

ndgun, loaded with .40-c aliber, ja ckete d, Fe dera l Hy drashoc k hollowpoint ammuniti on. ¶ 37 Helen te stified that she g ave the police a de scription of the gunman and he lped the police produce a composite sketc h without speakingto Christi na and w ithout viewing a ny prior composite sketche s or photog raphs of other suspec ts. As noted, she identified Ha rris fr om a photo arra

y two day s after

the incident and be fore Har ris' s photo was broa dcast on tele vision and in newspape rs. Hele n acknow ledg ed that she later saw Har ris' s photo on television twice prior to the phy sical lineup in August 1999. ¶ 38 Helen e x plained that she told the de tective she was " 70% sure " when she se lected H arr is's photo in May

beca use " [i ]t wasn' t a picture that shot me. I t was a r eal pe rson that shot me." She wanted to se e Ha

rris in person to be 100% sure that he wa s the gunman. When she saw H arr is in the lineup in August, Helen kne w he wa s the person who shot her, but aske d to have him step forwa rd ag ain so that he would know she had identified him. ¶ 39 Christina testified that at the time she viewe d the photo arr ay in May 1999, she had not
seen a ny television or print news c overa g e bec ause of her me dical condition. In particula r, Christina had not seen Ha rris' s photo before viewingthe photo arr ay . Prior to the phy sical lineup in Aug ust, Christi na had se en Ha rris' s photogr aph twice on television prog rams. Dur ing the lineup, Christina asked if Ha rris could a

pproac h the mirror a g ain and wa lk from left to right. She
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explained that she made that reque st beca use that wa s how Har

ris walked in the liquor store and it was the only

thing she could do to make Ha rris aw are that she knewhe wa s the one who shot her. Christina then told the off icer that Har ris was the gunman. ¶ 40 Christina was aske d about a state ment she made when she selec ted Har ris from the photo
arr ay that her se lection was ba sed on his hair a nd the shape of his head. She e x plained that wa s part of it, and a lso the shape of his ey es which she descr ibed as round r ather than almond-shape d, and his ea rs. Christina testified that she wa s cer tain of her

identification of Ha

rris as the pe rson who shot her. ¶ 41 Although Janewa

y was listed as a

witness for the State, she did not testify at trial. L ozano and Dor an, who e ntere d the liquor store shortly afte r the shooting s, also did not testify . L ee testified and his testimony was c onsistent with the account he g ave police on May 13, 1999, reg ardingpeople he saw in the store prior to the shooting s. ¶ 42 Dr. Otto Mac L in testified as a de fense expert in ey ewitness identification. MacL in, an assistant profe ssor at the Unive rsity of Northe rn I owa, holds adva nced de g ree s in psy cholog y . Prior to trial, MacL in prepa red a repor t containing 18 opinions relating to the fallibility of ey ewitness identification, including, amongothers, the c oncept of "w eapons f

ocus," i.e. , that when a person is threatened with a gun, the per son' s attention is drawn to the we apon and not the fac e of the person holdingit, thus m akinglater ide ntification less reliable ; the difficulty inhere nt in ey ewitness identification of offe nders of a diffe rent ra ce; a

nd the ef fec t that image s of a suspect shown on broa dcast media have on later identifica

tions by ey ewitnesses. O ver the State' s objection, the trial c ourt ultimately g rante d defe nse counse l's r equest that Mac L in be per mitted to
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testify reg ardingcross-r acia l identifications and we apons foc us. Defe nse counse l did not pursue tender ing Ma cL in as an e x pert on the e ffe ct of media cover ag e on eyewitness identification. ¶ 43 Followinghis convictions, which, as noted, w ere aff irmed on direc t appea l, Harr is filed, with the assistance of counse l, a postconviction petition on April 1, 2008, that raised 10 issues. Attache d to the petition were medical r ecor ds, police re ports, and numer ous aff idavits, including those of Janeway , Dora

n, MacL in, Dr. Robert Ha nlon, a neur opsy cholog ist, and Matthew McQua id, one of Ha

rris' s trial attorney s. Harr is subsequently amende d the petition to include two issues challeng ing his de ath sentenc e. The circ uit court g rante d the State' s motion t o dismiss on J uly 23, 2010. Whil e Ha

rris' s motion t o rec onsider wa s pending , his death sentenc e wa s commuted to natura l life. On April 15, 2011, the c ircuit court de nied Har ris' s motion t o
rec onsider. Ha

rris timely

filed this appea l. ¶ 44 ANALYSI S ¶ 45 On appe al, Har

ris contends that the c ircuit court e rre d in dismi ssing his petition beca use he made a substantial showingthat the State violated its constitutional duty to disclose exculpatory

evidenc e by

not informing the defe nse that Janeway rec anted he r identification of Har ris. Additionally , Har

ris contends that he made a substantial showing that his trial attorney s
wer e inef fec tive for f

ailing to pr esent (1) exculpatory evidenc e, includingthat J anew ay lied when she initially

identified Ha

rris and that two of the victims told by standers that two men committed the shootings, a

nd (2) e x pert testimony

reg ardingthe ef

fec t of postevent information on the reliability of eyewitness identification, and for f ailing to r equest a

fitness hea

ring . Finally , Har

ris contends that he made a

substantial showing tha

t his waiver of

the rig ht to counsel was not
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knowing and intellige nt, that he was not c ompetent to repr esent himself, a nd that there was a bona fide doubt reg ardinghis fitness to stand trial, which should have be en explored by the trial court at a fitness hea

ring
. ¶ 46 The Post-Conviction Hear ing A ct (Ac t) (725 I L CS 5/ 122-1 et seq . (West 2008)) provide s a proc edura l mechanism by which any

person imprisoned in the pe nitentiary may asser t that there
was a substantial denial of a

fede ral or state constitutional right in the pr ocee ding tha t resulted in his or her c onviction. 725 I L CS 5/ 122-1(a ) (West 2008); People v . Harris , 224 I ll. 2d 115, 124 (2007). Postconviction proce eding s may consist of up to three sta g es. People v . Pendleton , 223 I ll. 2d 458, 471-72 (2006)

. At the first stag e, the c ircuit court, without any input from the State, may dismiss a petition that is frivolous and patently without merit. Harris , 224 I ll. 2d at 126. A petition must prese nt "the g ist of a constitutional claim" to survive beyond the first stag e. Id. At stag e two, the c ircuit court may appoint counsel for

the def endant a nd the State may

move to dismiss the petition. Id. At the sec ond stag e, the r eleva nt inquiry is whether the petition sets forth fa cts that, if true, make a substantial showingof a c onstitut ional violation. Id. A petition that is not dism issed at the sec ond stag e proc eeds to the third stag e whe re the circ uit court conducts a

n evidentiar

y hear ing. Id
. ¶ 47 At both the second a nd third stag es of postconvic tion procee dings, the defe ndant bea rs the burde n of makinga substantial showingof a c onstitut ional violation. Pendleton , 223 I ll. 2d at 473. At the sec ond stag e of the proce eding s, all well-plea ded fa cts not positi vely rebutted by the trial re cord a

re taken as true
. Id . The c ircuit court doe s not eng ag e in fa ct-findingor
cre dibilit y

deter minations at the second stag e; rather, such de terminations are made at the
-15-1-11-1351

evidentiar y stag e. People v . Coleman , 183 I ll. 2d 366, 385 (1998). Her e, the c ircuit court g rante d the State' s motion t o dismiss Har ris' s postconviction petition. The decision to g rant a second- stag e motion to dism iss is a matter of lawand subjec t to de novo revie w. Id . at 387-88; Pendleton , 223 I ll. 2d at 473. ¶ 48 I . The Claimed BradyViolation ¶ 49 Har

ris first contends that he made a substantial showing that the State violated Brady v. Maryland , 373 U.S. 83 (1963), whe n it failed to disclose that Janeway rec anted he r identification of Ha rris as the pe rson she saw in the parkinglot after the shootings. In an af fidavit attac hed to the postconviction petition, J anew ay attests that afte r she testified in a deposition that Harr is was the per son she had se en outside the liquor store on the day of the shooting s, she continued to meet with prosec utors. On one suc h occa sion prior to trial, she told a fe male assistant State' s Attorney whose name she c ould not reca ll that she lied at her de position and that Harr is was not the man she ha d seen outside the store
. ¶ 50 I t is well settled that "the pr osecution must disclose evidenc e that is favor able to the
acc used and material e ither to g uilt or to punishm ent." (I nterna l quotation marks omitted.) People v . Harris , 206 I ll. 2d 293, 311 (2002) (quoting Brady , 373 U.S. at 87). The sta ndard f or materia lity

under Bradyis whether the re is a r easona ble proba bility that, had the e vidence been disclosed to the def

ense, the result of the pr ocee ding w ould have be en diffe rent. Id . Under this standard, a

revie wing court doe s not consider the suf ficienc y of the e vidence , but rather whether "the favor able e vidence could re asonably be take n to put the whole ca se in such a dif fer ent light as to undermine c onfidenc e in the ver dict." ( Interna l quotation marks omitted.) Id . at 311-12
-16-1-11-1351

(quoting People v . Coleman , 183 I ll. 2d 366, 393 (1998)). ¶ 51 In Kyles v. W

hitley , cited by

Har ris, the Supreme Court c ommented that " the Constitut ion is not viol ated e very

time the g overnme nt fails or choose s not to disclose evidence that might prove he lpful to the defe nse." Kyles v. W hitley , 514 U.S. 419, 436-37 (1995) ( citing United States v. Bagley , 473 U.S. 667, 675 (1985)). Kyles rec og nizes that prosecutors ha ve both the discretion to deter

mine whether

disclosure is re quired a

nd the re sponsibili ty

"to g aug e the likely net ef fec t of all such evide nce a nd make disclosure when the point of ' rea sonable proba bility ' is
rea ched." Kyles , 514 U.S. at 437. ¶ 52 At the outset, it should be noted that the pre mise of Har ris' s Bradyargument is his contention that the State' s case ag ainst him at trial was " weak" a nd thus the State' s failure to disclose J anew ay ' s rec antation takes on greater sig nificanc e. That char acte rization is not borne out by the re cord. ¶ 53 The State' s evidenc e at tria l tied Harr is to the crime throug h the testimony of two ey ewitnesses a

nd uncontrove rted proof

that, from May

7 through May

12, Har ris was in possession of the distinctive ty pe of w eapon a

nd unique ammunition used on the nig ht of the murders. In particula

r, He len and Christina – two eyewitness/victims – identified Har ris as the shooter shortly

afte r the incide nt and neve r wavere d from that position. The State a lso trace d 3
To the extent Harr is claims that Helen a nd Christina were "te ntative" in their 3 identifications bec ause ( 1) He len said she wa s "70% sure" that Har ris was the shooter

afte r viewingthe photo arr ay , but wanted to see him in person, (2) Christina alleg edly told a police office r she did not g et a g ood look at the shooter' s fac e (a statement she de nied making ), and ( 3) both Helen a

nd Christina asked that Ha rris appr oach the two-wa

y mirror twice when they identified him in the lineup, Harr is was able to f ully explore these issues throug h crossexamination of Helen a

nd Christina and the testimony of other w itnesses at trial. The State' s -17-1-11-1351

possession of a .40-c aliber G lock, the ty pe of w eapon use d in the incident, and its sole-sourc e ammunition to Harris. Michig an police of fice r Z elko testified that six day s befor e the shooting , Har ris was in her

custody . He disar

med her and esc aped. H arr is took Ze lko's .40- caliber semiautomatic Glock ha

ndgun loaded with .40-c aliber, ja ckete d Fe dera l Hy drashoc k hollowpoint ammuniti on. Fire arms expert Jeffre y Parise testified that thre e bullets rec overe d from the victims and the scene wer e .40-c aliber, ja ckete d Fe dera l Hy drashoc k, hollow-point bullets. A bullet rec overe d from Ambala l's body and anothe r found on the f loor of the store wer e fire d from one gun to the exclusion of all others. The fir ed ca rtridg e ca ses re cover ed fr om the store had marking s that could only

have be en made by

the firingpin of a .40-c aliber ha ndg un manufa cture d by the Glock Company . Sarelli testified that two day s befor e the shooting s Harr is asked his help in selling a

.40-ca liber Glock ha

ndg un, which Ha

rris showed to Sar elli. Harr is was living at the Aloha Motel, five bloc ks from the sce ne of the shootings. In the fa ce of the fore g oing e vidence , the fa ct that the we apon wa s not recove red doe s not translate into a findingthat Har ris was convicted on the basis of " wea k" e vidence . Consequently , in light of the stre ng th of the State' s
case ag ainst him, Harris fa ces a n uphill battle to demonstrate that the sole instance of nondisclosure ra ised in his petition rises to t he leve l of a Bradyviolation. ¶ 54 Takingthe nondisclosure of J anew ay ' s rec antation as true , this evidence is neither materia l nor exculpatory . First, Janeway was not an e y ewitness to the shooting s. She and her husband ar

rived at the liquor store af ter the shooting s. J anew ay was sitting in the pa sseng er se at of a c ar outside the liquor store and her view of the store entr ance was obscur ed by Christina's
failure to disclose J anew ay ' s rec antation thus had no ef fec t on this aspect of Ha

rris' s defe nse. -18-1-11-1351

car g o van. After

her husba

nd went inside the store and had be en in the store f or two minutes or 4 so, she saw a

man walkingon the sidewa lk in front of the store , but she did not see him until he walked in f

ront of the va

n and he the n proce eded to wa lk throug h the par king lot betwe en the va

n and her car . I t was not until J anew ay saw the c omposite on television that she contac ted the police and told them the man in the c omposite was the man she had see n in front of the store
. ¶ 55 Melville J anew ay , L ozano, and Dora n, who ea ch ente red the store shortly afte r the shootings, told police they did not see anyone leaving the store. Thus, the likelihood that the person on the side walk wa s the shooter wa s remote, at best. There was ther efor e no re ason to believe the man J anew ay

had see n was c onnecte d with the shootings until J anew ay later c laimed that Har ris, the per son who had a lrea dy been ide ntified by

Helen as the gunman, was the man she had see n that day . As Har ris' s trial counsel noted at a pre trial hea ring , J anew ay ' s orig inal acc ount placingHar

ris at the sce ne at lea st severa l minutes after the shootings and a fter othe rs had a rrived on the sce ne wa s improbable. ¶ 56 Second, Janeway

did not testify

at trial. The jur

y never hear d that someone who a rrived at the store a fter the shootings identified H arr is as beingat the sce ne. Instead, the jury found

J anew ay' s aff

idavit submit ted with Har ris' s postconviction petition clearly overstate s her 4 deposition testimony : "At that de position, I said that Ricardo H arr is was the man I saw com e out of the liquor stor eand in the liquor store pa rkinglot." (Emphasis adde d.) In her de position, J anew ay does not say

any thing a bout seeinga man e x it the store. The ne x t sentence of the aff idavit, however , states only that J anew ay

was not telling the truth when she identified Ha rris " as the man I saw in the liquor store parking lot ." ( Emphasis added.) This second sente nce is entirely consistent with the police re port in which she indicated that she c ould not see the store ' s entra nce f rom the ca

r bec ause he r view w as blocke d by Helen a nd Christina's va

n. Har ris' s eff ort to use the misstatement in the first sentenc e to ar g ue that Janeway must have see n someone other than Har ris come out of the store is thus fac tually unsupported. -19-1-11-1351

Har ris g uilty on the basis of the ide ntification made by the survivingvictims and the circ umstantial evidence that place d Har ris in the vicinity

of the liquor store pr ior to the shootings and conne cted Ha

rris to a we apon of the same make and ca liber and w ith the same unique ammunition as the wea

pon used in the cr ime. There fore , J anew ay ' s initi al identification neither play ed a r ole in Har

ris' s conviction nor is it reasona bly probable that her r eca

ntation, had it been disclosed, would have produce d a diffe rent re sult at trial. Her te stimony either w ay

was simply not material. ¶ 57 Finally , J anew ay ' s rec antation was not e x culpatory or eve n "f

avora ble" to Harr is. I f no witness place d Har

ris in the parkinglot severa l minutes after the shootings, it would not make it less likely that he wa s, in fact, the shoote r. ¶ 58 In a diffe rent ve in, Harr is contends that J anew ay ' s initi al identification of him after the composite and his photo wer e broa dcast on tele vision and in newspape rs and he r later admission that the per son she saw w as not, in fac t, Harr is, would have bolstere d the def ense the ory

that ey ewitness identifications following media display s of a suspec t's likene ss are inhere ntly unreliable . Whil e Janeway ' s about-fa ce ma y theore tically

illust rate one of Ma cL in's opinions (which de fense counsel e lected not to pursue at trial) , its relevanc e is exceeding ly marg inal in 5 the context of a ca se whe re two vic tims i dentified Ha rris fr om a photo arr ay

without any exposure to media cove rag e. Thus, while Janewa y ' s rec antation may

have te nded to show that she was susce ptible to being inf luence d by

imag es of Ha

rris she sa w in the media, it would have

For the re asons discussed infra ¶¶ 65- 66, this tactical dec ision does not give r ise to an 5 ineffe ctive assistanc e cla im. -20-1-11-1351

had absolutely

no bearing on the validity of He len' s and Christina' s identifications. ¶ 59 Har

ris' s attempt to bolster his Bradyviolation claim by analog izi ng the State' s failure to disclose J anew ay ' s rec antation to the fa ilure to disclose an infor mant' s statements in Kyles is without merit. Virtually

the only simil arity

betwee n J anew ay

and the infor

mant in Kyles is that neither te stified at trial. The inf ormant whose statements wer e neve r disclosed in Kyles was "e ssential" to the State' s investigation and he " ' made the c ase' " a g ainst the defe ndant. Kyles , 514 U.S at 445. Her e, Janeway ' s statement was disclose d to defe nse counse l and g iven the fa ct that she wa s not an ey ewitness to the shooting s, her testimony was c lear ly

not essential to the State' s case . ¶ 60 Moreove r, in this case, the prosec ution's fa ilure to disclose Janeway ' s rec antation is the only claimed Bradyviolation. I n contra st, the prosec ution in Kyles failed to disclose contempora

neous eyewitness stateme nts containing inconsistent descriptions of the of fende r, numerous (a

nd manifestly

contra dictory

) statements g iven by

the informant ( some of which tended to implicate the inf ormant in the murder), information tending to show de fenda nt's ve hicle was not par

ked in the lot wher e the murde r occ urre d, and evide nce linkingthe informant to other crimes at the scene . The Supreme Court found that the cumulative e ffe ct of the suppr ession of this evidence undermined c onfidenc e in the ver dict. Id . at 453. ¶ 61 The same cannot be said in this case. The fac t that J anew ay rec anted he r identification of Har ris as the pe rson she saw

outside the store a fter the shootings does not " put the whole ca se in such a diff

ere nt light as to under

mine confide nce in the ve rdict." Thus, we c onclude that Ha rris has not made a

substantial showing of

a Bradyviolation.
-21-1-11-1351

¶ 62 I I . Har ris' s Ineff ective A ssistance Claim ¶ 63 Next, Harris conte nds that he has made a substantial showingthat his trial attorney s were ineffe ctive for

failingto (1) ade quately

investigate or pre sent at trial Janeway ' s statement to a prosec utor that she lied whe n she identified Ha rris, and state ments that would have suppor ted the theory that two men other tha

n Har ris shot the victims, and (2) pre sent testimony from Mac L in
conce rningthe ef

fec t of postevent publicity on the re liability

of eyewitness identifica

tion. ¶ 64 Ineff

ective a ssistance of c ounsel claims ar e mea sured a g ainst the standar d set forth in Strickland v. W

ashington , 466 U.S. 668 (1984). To pre vail on a cla im of ineffe ctive assistanc e, a defe ndant must show both that counsel' s repr esentation fell below an obje ctive standa rd of
rea sonablene ss and that there is a rea sonable proba bility that, but for counse l's unpr ofessional
err ors, the re sult of the proce edingwould have be en diffe rent. Id . at 687-88, 694; see also People v. Edwards , 195 I ll. 2d 142, 162-63 (2001). " A re asonable probability is a probability

sufficie nt to undermine c onfidenc e in the outcome." Strickland , 466 U.S. at 694. Be cause a def endant must establish both prongs for a succ essful ineff

ective a ssistance c laim, a cour t consideringsuch a cla im need not deter

mine the re asonable ness of c ounsel' s perf ormanc e bef

ore c onsidering whether defe ndant suffe red pr ejudice a s a re sult of the alleg ed def iciency
. Id . at 697; Edwards , 195 I ll. 2d at 163. ¶ 65 Wit h respe ct to counsel' s failure to investigate and pr esent e vidence reg ardingJ anew ay ' s faulty identification, as pr eviously discussed, Janeway' s admission the person she sa w outside the store seve ral minutes af

ter the shooting s was not Har ris is not ex culpatory

evidenc e, nor is it evidenc e that someone other than H arris committ ed the shooting s. There is nothing in J anew ay ' s
-22-1-11-1351

aff idavit to sugg est that the individual she saw w as the g unman. ¶ 66 Indeed, c ontrary

to the aff idavit submit ted by

McQua id in support of Harr is's postconviction petition in which he attests that had he known J anew ay rec anted he would have called he r as a

witness at trial, McQua id's c o-counse l expressed the opposite opinion reg arding the value of

J anew ay' s identification of Ha rris at a pretria l hear ing. Co-c ounsel stated (w ith McQua id present) : "[O]ur positi on is it [ J anew ay ' s testimony ] i s completely inconsistent with what the two survivingvictims describe, that five minutes later Rica rdo Ha rris wa s standing outside the liquor store milling ar ound." G iven trial counse l's unde rstandable skepticism reg ardingJ anew ay ' s identification of Ha rris, if counse l had lear

ned of Janewa

y ' s rec antation prior to trial, she would have become irrele vant as a witness to both the State and the def ense. Thus, Har ris has not met the pre

judice prong

under Strickland

and, as a result, he ha s not made a substantial showing that counsel wa s ineffe ctive for failingto further

investigate J anew ay ' s statements. 6 ¶ 67 Har

ris also argues that his trial attorney s were ineffe ctive for failingto pursue evide nce that two shooters we re involved in the c rime. In particula r, Ha rris points to evidence that Dora n and L ozano, who arr ived at the store shortly afte r the shooting s, were told by separ ate victims that the shooters we re " two black men." Acc ordingto police re ports, Dora n told police that one of the fe male victims came to the front of the store, told her tha t multi ple people ha d been shot

Har ris also does not ar

ticulate what would have pr ompted his trial counsel to " further 6 investigate" J anew ay

g iven the consistenc y

of her pretria l identifications of Ha rris. Taking

the nondisclosure of he r re cantation as true, ther e would have been no r eason f or def ense c ounsel to take steps to obtain any

additional information from Janewa y . -23-1-11-1351

by two men and a sked her

to call 911. L ozano also told poli ce that one of the ma le victims told him that two indivi duals wer e re sponsible for the shooting s. ¶ 68 As a thre shold issue, acc epting as true the se witness statements, they do not exclude the possibili ty

that Har ris was one of the shooter s. Consequently , the introduction of victim statements that two shooters we re involved w ould not have helpe d Har ris g iven the other evidenc e that tied him to the crime r eg ardle ss of whethe r or not he a cted a lone. ¶ 69 Moreove r, Ha

rris' s postconviction petition does not raise a substantial issue on this point. Helen is the only

victim who walked to the f ront of the store afte r she ha d been shot, a nd Helen testified that she told Dora n only that multipl e people had bee n shot and asked he r to ca ll 911. Dora n' s aff idavit attache d to Harr is's postconvic tion petition s tates that she c annot re member Helen sa ying a ny thing other

than that they

had bee n shot and askingher to c all 911. Thus, g iven that Dora n' s aff idavit does not support the two-shooter the ory , it follows that counsel ca nnot be deeme d ineffe ctive for

failingto present he r testimony
. ¶ 70 Wit h respe ct to L ozano's state ment to the police, the r ecor d ref lects that Ha

rris' s appointed attorne y s reque sted and re ceive d a dela yed trial da

te so that they

could locate and interview L ozano, in the hopes that his testimony could support the two shooter the ory . There is nothing in the r ecor d to indicate the r esult of that interview , but the defe nse did not, in fact, c all L ozano as a witness. Ha

rris has not attac hed an a ffidavit fr om L ozano to the petition. Consequently , beca

use Ha rris has not eve n established what L ozano's te stimony would have been, H arr is has failed to de monstrate that his counsel we re ine ffe ctive for not presenting L ozano's te stimony

at trial.
-24-1-11-1351

¶ 71 Har

ris also argues that trial counse l should have pre sented Dor an' s statement to police that she saw two me n runningawa y from the dire ction of the liquor store f ive minutes befor e she
arr ived at the store . Ag ain, ac cepting Dora n' s statement to the police a s true, it does not discount the possibilit y

that Har ris was one of those men. ¶ 72 Fur

ther, Ha rris' s arguments reg ardingthe re levanc e of D oran' s statement ar e interna lly inconsistent. I n his ineffe ctive assistanc e ar g ument, Dora n' s statement supposedly

supports the two-shooter the ory . Howeve r, in conne ction with his Bradyargument, Har ris contends that Dora n must have ente red the store almost immediately afte r the shooting s beca

use He len testified that she enc ountere d Dora n within a minute after

she wa s shot. Thus, under this iteration of Har ris' s argument, Dora

n' s statement re g ardingthe two men she sa w runningin the opposite direc tion five minutes ear lier is obviously irrele vant bec ause she would have se en them eve n befor e the shooting s occur red. 7 ¶ 73 Har

ris further contends that his trial attorne y s were ineffe ctive for failingto present expert testimony

about how post-eve nt publicity can le ad to misidentification. In the context of this case involving two ey ewitnesses who identified Ha rris prior to see ing a

ny pictures of

him in the media, this argument is specious. Moreove r, the only photo of Har

ris that Helen a

nd Christina saw on television prior to the phy sical lineup in August was the one the y had alr eady picked out of the photo arra y in May . I t is, therefor e, impossible that their exposure to this photo

Har ris raises a

n additional argument reg ardinganother witness who looked out the 7 window of he r trailer

home ac ross the stree t from the liquor store a fter the shootings. She claimed she saw a

"suspicious" man standingbehind a stre et sig n looking into the store. T he lack of rele vance of this testimony is so obvious t hat we w ill not s epar ately addre ss it. -25-1-11-1351

could have produce d an unre liable identification. Bec ause Ma cL in's opinion re g ardingthe possibili ty

that postevent publicity

can pr oduce unr eliable identific ations was absolutely irrele vant, counse l cannot be de emed inef fec tive for f

ailing to pr esent it. ¶ 74 I I I . Har

ris' s Dec ision to P roce ed Pro Se and his Fitness to Stand Trial ¶ 75 Finally , Har

ris contends that he made a substantial showing tha

t his waiver of

the rig ht to counsel wa s not knowing a nd intelligent, that he was not compe tent to repre sent himself, and that there was a bona fide doubt reg arding his fitness to stand trial. Wi th reg ard to the f itness claim, Har ris argues that the trial c ourt err ed by not orderinga fitness he aringor, alter natively , that trial counsel wa s ineffe ctive for not reque sting a

fitness hea

ring
. ¶ 76 I t is necessa

ry to place H arr is's a

rguments on these issues in context. For over two y ear s following his arra ignme nt in August 1999, Ha rris wa s repr esente d by

attorney s from the Public Def ender ' s office . At Har

ris' s reque st and afte r the e x tensive proc eeding s detailed a bove, Ha rris
was a llowed to waive c ounsel and he repr esente d himself from Oc tober 2001 until Marc h 18, 2003, when, a g ain at his reque st, counsel wer e appointed to r epre sent him at trial. Trial
commence d 10 months later in J anuar y 2004. ¶ 77 Although H arr is argues that seve ral sig nificant pre trial steps wer e take n duringhis period of self- repr esentation, including the de positions of witnesses (conduc ted in open cour t in the prese nce of

the trial judg e) a

nd the appointment of a

n expert, he does not cla im that there we re any adver se ruling s or other de velopments that prejudice d the pre paration of his defense
. Fur thermore , duringthe 10 months he was r epre sented by appointed counse l prior to trial, Har ris does not point to any

occa sion on which counsel e ver a sked for and we re r efuse d the opportunity
-26-1-11-1351

to revisit any

motions or rulings made duringthe time Har ris proce eded pro se . ¶ 78 There fore , this case is cle arly unlike those in which cr iminal defenda nts were unrepr esente d for the e ntirety of their c riminal prosec ution. See People v . Lego , 168 I ll. 2d 561 (1995). B ut since eve n a short per iod of self-r epre sentation ca n g ive rise to a c onstitut ional claim if it occurs dur ing a

" ' critica l stag e' " of

criminal proc eeding s, People v . Vernon, 396 I ll. App. 3d 145, 154 (2009), we will ex amine Ha rris' s claim that he is entitled to postconviction relief beca use he w as not compete nt to waive his rig ht to counsel. ¶ 79 Be fore a cour

t acc epts a wa iver of counsel, it must determine that the de fenda nt is competent to stand trial a nd that the waive r of c ounsel has bee n knowing ly and voluntarily

made. Godinez v. M

oran , 509 U.S. 389, 400 (1993); see also People v . Kidd , 178 I ll. 2d 92, 104 (1997). A knowingand voluntary waiver require s a full awa

rene ss of the nature of the right being abandone d and the c onsequenc es of the de cision to abandon it. Kidd , 178 I ll. 2d at 104-05. In
connec tion with allowing a de fenda nt to procee d pro se , the trial cour t must determine, in open court, that the de fenda

nt understands the nature of the char g e, the minimum and maxi mum sentenc e prosc ribed by

law, and that he has a

rig ht to have counse l appointed if he is indig ent. I ll. S. C t. R. 401(a) (e ff. July 1, 1984). The re cord a

mply ref lects the trial c ourt' s strict adher ence to the fore g oing r equire ments. ¶ 80 I t is ax iomatic that the prosec ution of a def endant who is not fit to stand trial is a violation of due proc ess. See People v . Easley , 192 I ll. 2d 307, 318 (2000) (a nd case s cited there in). A def

endant is pre sumed to be fit to stand trial, and is only entitled to a fitness hea

ring when a bona fide doubt reg ardingthe def endant' s fitness is raised. Id . A def endant will be
-27-1-11-1351

considere d unfit only

if, bec ause of

the def endant' s phy sical or menta l condition, the defe ndant is unable to under stand the nature or purpose of the proc eeding s and assist in his or her de fense
. Id
. Relevant fa ctors that may be conside red by

the trial cour

t in assessing whether

a bona fide doubt reg ardingfitness exist s include a de fenda nt's irr ational behavior, demea nor at trial, a

nd any prior medical opinion on def

endant' s fitness to stand trial. Id . at 318-19. ¶ 81 I f a de fenda

nt who is fit to st and trial ha s determined to wa ive the right to counsel, a trial court must acc ede to that r equest. " Although a court may

consider a

defe ndant' s decision to repr esent himself unwise, if his decision is free ly , knowing ly , and intellige ntly made, it must be
acc epted out of ' that respe ct for the individual which is the lifeblood of the law .' " ( Interna l quotation marks omitted.) Lego , 168 I ll. 2d at 563-64 (quoting Illinois v. Allen , 397 U.S. 337, 350-51 (1970) ). Onc e the c ourt has assur ed itself that the wa iver is valid, it may not force a defe ndant to continue to be r epre sented by counsel he does not want. Faretta v. California , 422 U.S. 806, 833-34 (1975). ¶ 82 Har

ris is entitled to relief on this postconviction claim only if the fa cts in his petition make a substantial showing that the trial court would have orde red a fitness hea

ringif it had bee n apprised of

the evidenc e now of

fer ed. Easley , 192 I ll. 2d at 319. In support of his claim, Har ris submitt ed two af

fidavits from Dr . Robert Hanlon. Dr . Hanlon atteste d that Har ris suffe red f

our signific ant incidents of he ad tra uma in his lifetime. Moreover , neuroc og nitive testing re sults indicated thre e categ ories of mild to moderate neuroc og nitive impairment in the following a rea s: (1) attention and information proc essing , (2) memor y , and (3) executive func tioning. F inally , testing de monstrated a la

rg e diffe renc e betwe en Ha rris' s verba l and nonver

bal I Q score s. Dr.
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Hanlon is of the opinion " to a re asonable deg ree of neur opsy cholog ical ce rtainty ," that at the time he wa ived his rig ht to counsel Har ris "c ould not have bee n able to under stand the dang ers a nd disadvantag es of r epre sentinghimself, nor could he have be en fully awa re of the conse quence s of proce edingwithout a lawy er." ¶ 83 Although the State contends that Dr . Hanlon' s findings " to a re asonable deg ree of neuropsycholog ical ce rtainty " utilize an invalid standard ( a conte ntion that may well be c orre ct), we note that even if w e take as true D r. Ha nlon's opinion that Ha

rris suffe rs from c og nitive impairments, this does not compel the conc lusion that Harris has r aised a bona fide doubt as to his fitness to stand trial. "F itness speaks only to a per son' s ability

to function within the context of a tria l. I t does not ref

er to sanity

or compe tence in other ar eas. A defe ndant ca

n be fit for

trial althoug h his or her mind may be other wise unsound." Id . at 320. The r eleva nt inquiry is whether Har ris was a ble to understand the nature of the proc eeding s and par ticipate in his defe nse. ¶ 84 Nor is it nece ssary , as Ha rris conte nds, to weig h the cr edibility of Dr. H anlon' s versus Dr
. Seltz berg ' s opinions in order to rea ch this result. Given that Ha rris re prese nted himself for ove r a y ear , duringwhich time he f iled motions, appeare d befor e the tria l court numerous times and deposed a number of w itnesses, the re cord pr ovides ample e vidence that Har ris understood the nature of the proc eeding s ag ainst him and was able to participate in his defense . Despite the voluminous record on a

ppeal, Ha rris has not identified a

single occa sion upon which he said or did any thing indicating that he was de lusional or otherwise out of touch with rea lity . Indeed, the
rec ord demonstrates otherwise
. ¶ 85 Unlike the def

endant in Lego , who informed the court that he had " ' 40-y ear s

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experience ' " in r epre senting himself and other s and believe d that his leg al skills equaled or exceede d those of any

attorney ( Lego , 168 I ll. 2d at 565), Har ris had no such illusions. He
rec og nized that repre senting himself put him at a disadvantag e, complaine d that it was " unfair," and ultimately

reque sted appointed c ounsel prec isely beca use he r ecognized he could not eff ectively repr esent himself a

t trial. The re cord a lso shows that Harr is's lac k of coope ration with his init ial counsel a

nd his refusa l to participate in the mitig ation evidenc e portion of his trial with subsequent counse l was not due to his unfitness, but, rather , to his personal antipathy toward his initial counsel and his conscious dec ision to refra in from pre sentingany evidenc e in mitigation. 8 "D efe ndant' s unwillingness to coope rate with counsel ca nnot be dee med equivale nt with an inability to do so." (I

nterna l quotation marks omitted.) Id . (quoting People v . O'Neal , 62 I ll. App. 3d 146, 149 (1978)) . Har ris was c lear ly

not delusional. ¶ 86 Finally

the re cord f

latly ref utes the notion that Harr is could not knowingly and intelligently

waive his rig ht to counsel bec ause ne urocognitive impairments rende red it impossibl e for

him to understand the risks and disadva ntag es of r epre senting himself. When Har ris first informed the court of his de sire to proc eed pro se , the cour t urg ed him to rec onsider his decision and continued the case for se vera l weeks. When he returne d, Har ris advised the court that he had re considere d g iven his lack of r egular a cce ss to the library and law books. Thus, Har ris clea rly understood that ther e would be disa dvantag es in proce edingwithout a

As we ha ve alr eady

observe d ( supra ¶ 34 n.2 ) , Har ris' s decision to ref

rain fr om 8 prese nting e vidence in miti g ation can be rea dily explained by

the fa ct that, as noted by

our supreme c ourt, such evide nce w ould not have bee n helpful and, in some r espec ts, would have proved de trimental to Harr is in the sentencingphase. -30-1-11-1351

lawy er a nd consciously

chose to c ontinue with his appointed counsel. Af ter Ha rris wa s permitted to repre sent himself for a littl e over

a year , he ag ain informed the court that he did not believe he should continue to proce ed without a lawyer a nd, at his reque st, private counse l repre sented him from that point throug h trial and sente ncing
. ¶ 87 Thus, Har

ris' s own conduc t demonstrates that he was a ccute ly awa re ofthe risks of selfrepr esentation, so much so that he reve rsed c ourse a nd reque sted the appointment of c ounsel to repr esent him at trial. In the fa ce of this recor d, it is i mpossible for Har ris to make a substantial showing that he wa s either unf it for trial or incompe tent to decide to wa ive counse l. ¶ 88 Given our c onclusion that Harr is was compete nt to waive counse l and that he did so knowing ly

and voluntarily , it follows that the trial court did not err in failingto hold a fitness hear ing a nd Har ris' s counsel wa s not ineffe ctive for failingto reque st one. ¶ 89 For

the re asons stated he rein, we hold that the circ uit court did not err in g rantingthe State' s motion t o dismiss Har ris' s postconviction petition and we af firm the judg ment of the circ uit court. ¶ 90 Affir

med.

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