## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Harris , 2013 IL App (1st) 111351

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. RI CARDO HARRI S, Defe ndant-Appe llant.

District & N o. First District, Third Division Docke t No. 1-11-1351

Filed October 16, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The dismiss al of defe ndant’s postconvict i on petition was aff irmed followingthe reje ction of his c ontentions that the State violated its duty
to disclose eviden ce t h at a witness rec anted her initial identification of defe ndant, that his trial counsel was ineffe ctive, that his waiver of counsel duringpretria l proce eding s was not know ing, and that ther e wa s a bona fide doubt of his fitness to stand trial.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 99-CR-18 5 5 4 ; the Hon. Colleen McSwee ney -Moore , J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Br ian E. Ko ch
, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg and Christine Cook, Assistant State’s Attorney s, of counsel), for the People.

Panel 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 Following a jury trial, defe ndant Ricardo Har ris was convicted of two counts of murder
, one count of attempted murder and one count of ag g ravated battery with a firea rm. Har ris

was sentenc ed to de ath on the murder counts, and to consec utive terms of 30 year s eac h on the rema ining counts. The I llinois Supreme Co u r t a f f ir med Har ris’s convictions and sentenc e

on direc t appea l. People v. Harris
, 225 I ll. 2d 1 (2007). Har ris’s death s en t en ce was subsequently

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 to dismiss the petition. On appea l, Har ris contends that the circ uit court err ed in dismiss ing the petition beca use he made a substantial showing that (1) the State violated its constitutional duty to disclose exculpatory evidenc e, (2) he rec eived ineffe ctive assistance of trial counsel, and (3 ) h i s waiver of the rig ht to counsel during a signific ant portion of pretria l proce eding s was not knowing
, he was not competent to repr esent himself, and there

was a bona fide doubt reg arding his fi t n es s t o s t an d trial. For the rea sons that follow, we aff irm the judg ment of the c ircuit court of Cook County

.

¶ 3 BA CKGROUND ¶ 4 On May 13, 1999, at approximately 7:25 p.m., the Oak L awn police depar tment r ece ived a report of a shoot ing at the Ext ra V alue liquor store in Oak L awn, I llinois

. Police office rs responding to the call discovere d that four persons had been shot, store employ ees Dipak and Ambalal P atel and customers Christ ina and Helen C hisnick. The victim s wer e transported to the hospital, where Dipak and Ambalal died fr om their wounds. ¶ 5 Christina a

nd Helen went to the liquor store around 7:15 p.m. Christina parke d her van in the parking spot to the rig ht of the store entra nce. There wer e no other car s in the parking lot and only

Dipak and Ambalal wer e inside the store

. ¶ 6 Christina and Helen walked down the aisle wi th the beer cooler s and Ambalal wa lked

over to a ssist them while Dipak rema ined behind the counter

. Christina took a case of beer

-2-from the cooler and turned to see Dipak walking toward them and a man with a gun behind

him. The man shot Dipak, then shot Ambalal and Christina. Helen hear d a gunshot and saw Ambalal’s chest turn bloody
, then saw Christina f all to the floor. Helen turned and saw the
gunman, who was s t an d ing about five fee t awa y

. Helen looked at the gunman’s fac e for

sever al sec onds. He then shot her

. ¶ 7 Helen prete nded to be dead for about 20 seconds and then went to the front of the store. She saw a man and a woman, neither of whom had been in the store when she and Christina

arr ived. She asked the woman to call 911 and the police and para medics arr ived shortly there afte r. ¶ 8 Christina, who was shot twice, communicated brie fly with an offic er in the e merg ency

room befor e underg oing surg ery

. She told the office r that the gunman wa s a b l ack male, approximately 5 fee t 9 inches wi th short, natura l, black hair. A detec tive also interviewe d Helen in the emer g ency room while she was being treated for a single gunshot wound to the abdomen. Helen told the detec tive that the offe nder was a black male, approximately 5 fee t 11 inches and 170 pounds, and he was wea ring a black shirt or jacke t, black pants, and black shoes. The next day
, the detec tive interviewe d Helen at leng th and, wi t h h er assistance
, prepa red a composite sketch of

the gunman. ¶ 9 In the meantime, detec tives interviewe d other witnesses at the scene

. J esse L ee, J r., went to the l iquor store shortly befor e the shooti ng s. Inside the store, he saw a black male and a Hispanic male. When L ee left the store, he saw two other vehicles in the parking lot. A Hispanic woman and a child wer e in one vehicle, and a black male was sitti ng in the driver’ s seat of the other ve hicle. ¶ 10 L ee drove to a g as station down the street and had been there for about 10 minutes when he hear d the sirens and saw the police vehicles a t the liquor store. He returne d to the store, told police about the three men he had seen, and assisted the police in pr eparing composite sketche s of the men. ¶ 11 L arr

y L ozano and Heather Dora n both went to the liquor store shortly afte r the shootings

occu rre d and befor e police and para medics arr ived. L ozano told detec tives that one of the male victim s told him the offender s wer e two black males. Do ra n told police she saw two men running on Cicero Avenue before she pul led i nto a gas sta t i o n t o buy cig are ttes. Five minutes later, Dora

n drove to th e l i qu o r s t ore and went inside, wher e one of the fema le victims told her that four people had been shot by two black men and asked her to call 911. ¶ 12 On May 15, afte r rea ding about the liquor store incident in the newspa per, Fr ank Sare lli
contac ted the police and informed them he had information about the shootings. Sarelli told the police he was li ving at the Aloha Motel, five blocks fr om the Ex tra Va lue liquor store. Sarelli met Har

ris at the motel on May 11 and smoked some cra ck coca ine with him. Har ris then g ave Sarelli money to procur e more drug s. Sare l l i o btained drug s for Har ris three
separ ate times at Ha

rris’s re quest on May

11 and 12. ¶ 13 After Sarelli delivere d drug s to Har ris for the third time, Har

ris told Sarelli he had a gun he wanted to sell. Har

ris showed Sarelli a b l ac k
, .40-ca liber Glock handgun. Sarelli made calls to sever al drug

deale rs he kne w but was una ble to sell the gun. ¶ 14 Har

ris came t o S arelli’s room the morning of May 13 and asked for more coca ine. He

-3-also told Sarelli that he was no long er inter ested in selling the gun bec ause his brothe r and

cousin wer e coming into town f rom Michig an and the y

might wa nt the gun. In a re cording of t h e initial call Sarelli made to police, he descr ibed the gun as “a Glock 40 caliber semiautomatic pistol, 13 shot clip.” At the t ime Sarelli first contac ted police, ther e wa s no

rew ard posted f

or information relatingto the shootings. 1 ¶ 15 On the basis of the information provided by Sarelli and from information obtained from the Aloha Motel, police wer e able to obtain a picture of Har ris from authorities in Michig an, wher e Har

ris had esca

ped from police custody six day s befor e the shootings. On May 15, 1999, detec t i v es v i s i ted Helen and showed her a photo arr ay that included the picture of Har ris they had obtained. Helen selec ted Har ris’s photo and identified him as the person who shot her. ¶ 16 Also on May 15, J ean J anew ay contac ted the police and told them she and her husband had g one to the liquor store shortly afte r the shootings. Her husband, Melville, parke d the car to the rig ht of a van that was in the parking lot. The van obscure d J anew ay ’s view of the store entra nce. J anew ay stay ed in the passeng er seat of the car while her husband went inside the store. Melville re mained in t he st ore 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 walked past the front of the van. The man stopped and appea red surprised to see her, then walke d betwee n her c ar a nd the van. ¶ 17 Approxim ately one minute later, J anew ay ’s husband ran back to the car and told Janewa y about the victims he found inside the store. H er husba nd said he did not se e anyone else in the store. Although she did not say any thing to p o l i ce that evening about the man she had seen, two day s later J anew ay to l d t h e poli ce that she recognized the composi te s ketch that had been broadc ast on television the night befor e as the man she had seen outside the store that day . J anew ay

subsequently

selec ted Har

ris’s photo from a photo a rra y

. ¶ 18 On M ay 1 6
, d et ec t i v es trave led to Flint, Michig an, to interview Har ris’s br o t h er , R o d er i ck, whose name was on the Aloha Motel reg istration car d and who was initiall y a suspect in the case

. On May 23, a detec tive visited Christina in the hospital, wher e she was still rec overing
, and showed her the same photo arr ay that had been shown to Helen, except that a picture of Har

ris’s brother had been substitut ed for one of the other photos. Christina selec ted Har

ris’s photogr aph from the arr ay as the person who shot her. Prior to identifying Har ris in the photo arr ay , Christina had not seen any news cover ag e of the incident and she had not see n Har

ris’s photo on broadc ast television or in the new spaper

. ¶ 19 On August 4, 1 9 9 9
, Har ris was arr ested in Charlotte, North Carolina. He had a Nor th Carolina identification card containing his photo and the name J oaquinn Alexander McCall, and a social securi t y car d with the s ame name. Harris was ex tradited to I llinois
, wher e the Oak L awn police conducte d a phy sical lineup on August 7. Christina and Helen viewed the lineup separ ately

. In both viewing s, eac h subject in the l i n eu p walked up to a two-wa y mirror. Christina and Helen both asked for Har ris to approa ch the mirror a second time. Both

By the ti m e of tr ia l, Sar el li te st if ie d tha t he exp ect ed to re cei ve a re war d of $200 0 to $250 0 1 if Harri s wa s c onvict ed.

-4-of them identified Har ris. Sarelli and J anew ay also viewed the lineup separ ately an d b o th identified Ha

rris. ¶ 20 Har

ris was initially repr esente d by an attorney with the public defe nder’ s office

. During

a hear ing on May 4, 2000, Har ris reque sted the appointment of differ ent counsel beca use he felt that his appoint ed co u n sel “did not want to respe ct” any of the things Har ris thought

wo u l d b e h elpful to his case and beca use Har ris wanted a speedy trial. Har ris furthe r expl ai n ed t hat he felt his appointed counsel was prejudice d ag ainst him beca use of his criminal history

. The trial court commented that if it wa s a matter of a persona lity conflict, Har ris could t ry to work that out with the publ ic d ef en d er ’s office
, but stated t hat Harris’s only other options wer e to reta in private counsel or repr esent himself. The trial court advised Har ris to rec onsider his reque st for differ ent counsel and expressed confide nce in the abilities and experience of Har

ris’s appointed counsel. Har ris proce eded with his initial counse l f or more than a

y ear afte r that hea

ring

. ¶ 21 On August 14, 2001, Har ris ag ain asked for the appointment of differ ent counsel, stating that he had no trust in his counsel and that he believed his counsel was working ag ainst him. Har ris’s primary contention was that he believed he h ad b ee n arr aigned befor e he was formally indicted, based on his understanding of d i ff ere nt time stamps that appea red on copies of documents he had rec eived. The trial court assure d Har ris that he had been indicted by the g rand jury

on August 12, 1999, and subsequently arr aigned on August 16. ¶ 22 Har

ris reminded the court that he and h i s co u n s el wer e at odds from the beg inning, beca use Har ris wanted a speedy trial so that the State would not h av e time to build a case ag ainst him, but his counsel told him that no attorney “wor th his salt” would take a client to a spee dy trial g iven the magnitude of the c harg es fa cinghim. Harris stated that if the court would not appoint new counsel, he would be forc ed to repr esent himself beca use he did not trust his curr ent counsel. The trial court admonished Har ris that if he chose to repr ese n t himself, he would do so at his peril and would be at a tremendous disadvantage

. T h e trial court g ave H arris a few

wee ks to consider his dec ision. ¶ 23 At t h e n ex t s t at u s hear ing, Har ris told the trial court he had decide d not to repre sent himself b eca

use he had limit ed acc ess to the law library and a very limit ed supply of law books. The trial court admonished Har ris that it was not g oing to allow him to vacillate
reg arding wh et h er t o continue with appointed counsel and asked if Har ris’s decision was final. Har ris said that it was and that he and the two attorney s from t h e public defe nder’ s office had spoken pr ior to the hea ringand they

wer e try ing to r esolve the trust issue. ¶ 24 A few months later, howeve r, Har ris ag ain told the trial court that he wanted to disc harg e his at t o rney s and repr esent himself beca use he did not trust either of them. Har ris also
reque sted the appointment of counsel other than from the public de fende r’s off ice due to a conflict of interest. After considerin g Har ris’s complaints
, the t rial court observe d that the i s s u e was rea lly a dis agree ment over tactics or strategy , not a conflict of i ntere st. The tri al
court declined to appoint new counsel and agree d to rec onsider Har ris’s motion to repr esent himself. ¶ 25 The trial court allowed Har ris to argue fac ts in support of his alleg ation that counsel ha d
not acte d in his best interest. Def ense cou n s el ex p l ained to the trial court that Har ris was

-5-initially cooper ative until h e b ega n t o believe there was a conspirac y ag ainst him that

included defe nse counsel and the public defe nder’ s office and that ever y attempt to demonstrate to Har

ris that his fe ar s wer e unfounded had failed. The trial court considere d Har ris’s motion t o repr esent himself toge ther with another leng thy motion Har ris had prepared asking for the appointment of a law profe ssor as his counsel. In denying both motions, the trial court found that (1) the alleg ations raised wer e either spurious or perta ined only to trial tactics or strategy , (2) defe nse counsel had been zealous in his repr esenta tion of Har ris, (3) Har

ris was attempting to cre ate a conflict of interest by conjec ture and meritless complaints, (4) no a ctual conf lict had bee n shown, and (5) Har ris would not be pre

judiced if defe nse counsel continued to repr esent him. Har ris then elec ted to proce ed p r o s e , but stated that he thought it was unfair and that he was only making that decision beca use the
court re fused to appoint alter native counse l. ¶ 26 Wit h respe ct to Har ris’s profe ssed desire to repr esent himself, the trial court admonished him, both verba lly and in writing
, reg arding the nature of the char g es, the possible penalties, and the risks and require ments of self-r epre sentation

. T h e t rial court also g ave Har ris additional time to consider his dec ision. ¶ 27 At the next hear ing, Har ris re p ea t ed his intention to proce ed pro se and the trial court read the admonishments ag ain. Har ris executed the waiver of counsel in open court. As a final pre caution, the tria l court orde red a beha vioral clinica l examination (BCX) re g arding Har ris’s fitness to stand trial and his competenc y to make the decision to repr esent himself. ¶ 28 Dr

. R o n i S el t z b erg from For ensic Clini cal Service s conducte d the BCX, which took months to complete. In connec tion with rea ching her opinion reg arding Har ris’s fitness to stand trial and his ability to decide to repr esent himself, Dr. Seltz berg revie wed voluminous documents, i ncluding medical recor ds that ref lected a hi story of subs tance abuse a nd head injuries and failed to disclose a psychiatric history
, transcripts of proce eding s befor e the trial court, and motions filed by Har ris, including a

leng thy handwritten doc ument detailing his complaints ag ainst his appointed counsel. Dr. Seltz berg also interviewe d Har ris. The trial court grante 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 de cide to r epre sent himself. Dr. Seltz berg was further of the opinion that Har ris had a ve ry

g ood understandingof the nature of the charg es and proce eding s ag ainst him, had the capa city to assist counsel in his defe nse, and his choice to repr esent himself did
not appea r to be based on any psychotic proce ss or cognitive disorder but, rathe r, on his own interpre tation of other matters unrelated to a psychiatric disturb ance

. The trial court then

acc epted Ha

rris’s wa iver of c ounsel. ¶ 30 Ha rris there afte r filed numerous pro se motions, participated in h ea ri n gs o n t h o s e motions, conducte d the depositions of five witnesses and reque sted and re ce i ved the appointment of sever al expert witnesses. Among other s , H arr is deposed Helen and Christina, both of whom testified unequivoca lly that he was the person who shot them as well as Dipak and Ambalal. Har

ris also deposed J anew ay , who identified him as the person she saw in the parkinglot the night of the shootings. ¶ 31 After Har

ris was permitted to proce ed pro se , the trial court periodica lly questioned him

-6-as to whether he wished to continue to repr esent himself

. Ha rris alway s responde d aff irmatively

. ¶ 32 As the trial date approa ched, the trial co u rt d ecide d to appoint private counsel for the limit ed purpose of addre ssing ag ain Har ris’s claim that he had rec eived ineffe ctive assistance from his prior counsel. Har ris’s appointed attorney s elec ted to stand on the previous motion and did n o t prese nt any supporting evidenc e. Har ris’s attorney s informed the court that, following discussions with Har ris reg arding his rig ht to testify in suppor t of the alleg ations in his motion, Har

ris stated that he did not wish to exercise that rig ht. The motion was ag ain denied a nd private c ounsel was dismissed. ¶ 33 A few months later, Har ris told the trial court he would like to rec onsider his decision to
proce ed pro se beca

use he rea liz ed he was not able to eff ectively repr esent himself. The trial
court later appointed the same pr ivate counse l to repre sent Har ris at trial. Ove r the ne x t 10 months, Har

ris’s counsel revie wed all of the dis co v er y , filed numerous motions, worke d diligently on mitigation, obtained the a ppointment of a second investigator, was pre sent at t he deposition of Dr. Otto MacL in, the only defe nse expert, litigated and won a motion to suppress, and succe ssfully litigated a motion to exc l u d e t wo o f Har ris’s three prior convictions. ¶ 34 Har

ris ref used to cooper ate with his appointed counsel in developing mitigati o n evidenc e in prepa ration for the sentenc ing phase of his trial

. Al t h o ug h defe nse counsel repe atedly pursued family members and others for information relating to mitigation, Har ris expressed his desire to the trial c ourt that no mitigation evide nce be prese nted. 2 ¶ 35 Har

ris’s trial commence d on J anuar y , 30, 2004. The State called a firea rms expert who testified that the three bullets rec overe d during the investigation wer e .40-ca liber, jacke ted, Hydrashoc k hollow-point bullets, a distinctive ty pe of ammunition manufa cture d only by the Fe dera l Company

. The bullets rec overe d from the store and from Ambalal’s body wer e fired from the same gun, and the five car tridg e case s rec overe d from the store could also have been fired from the same gun. Eac h car tridg e had distinct elliptical firing pin impressions that are only left by the firingpin of a .40-c aliber ha ndgun manufa cture d by

the Glock Company

. ¶ 36 Pauline Z elko, an o ff i ce r wi t h t h e Ge n es ee County sheriff ’s depar tment in Flint, Michig an, testified that Har ris was 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 fire arm wa s a .40-

c a lib e r semiautomatic Glock handgun, loaded with .40-ca liber
, ja c k e te d
, F e d e r a l H y d r a s h o c k hollow-point ammuniti on. ¶ 37 Helen testified that she g ave the police a description of the gunman and helped the police produce a composite sketch without speaking to Christina and without view i n g an y prior composite sketche s or phot og raphs of other suspects. As noted, s he identified Har ris from

I n Harri s’ s dir ect app eal
, the s upr eme cou rt obs erved tha t des pit e Harri s’ s wis hes
, his 2

cou nse l had obt ai ned vario us m edi cal re cor ds. Addr ess ing Harri s’ s c la im tha t his at tor neys wer e ine ff ect ive for fa il ing to pre sen t thi s eviden ce in m it igati on des pit e his con tr ary dir ect ion
, the cou rt fou nd cou nse l’ s dec is ion not to use the re cor ds to be re aso nab le bec aus e, am ong oth er thi ngs, the y didnotdi scl ose th atHarri s s uff er ed f rom any neur olo gical di sor der

. Harr is , 225 I ll . 2d at48.

-7-a p h o t o ar ra y two day s afte r the incident and befor e Har ris’s photo was broadc ast o n television and in newspa pers. Helen 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 explained that she told the detec tive she was “7 0 % s u re ” when she selec ted Har ris’s phot o in May beca

use “[ i] t wasn’t a picture that shot me. I t was a r eal person that shot me.” She wanted to see Har ris in person to be 100% sure that he was the gunman. When she s aw Har

ris in the lineup in August, Helen knew he was the person who shot her, but asked to have him step forw ard a g ain so that he would know she had identified him. ¶ 39 Christina testified that at the time she viewed the photo a rra y in Ma y 1999, she had not

seen a ny television or print news c overa g e bec ause of her me dical condition. I

n particula

r, Christina had not seen Ha rris’s photo bef

ore vie wing the phot o arr ay

. Prior to the phy sical lineup in August , C h ristina had seen Har ris’s photogr aph twice on television programs. During the lineup, Christina asked if Har ris could approa ch the mirror ag ain and walk from left to rig ht. She expl ained that she made that r equest be cause that was how Har ris walked in the liquor store and it was the only thing she could do to make Har ris awa re that she knew he wa s the one who shot her . Christina then told the office r that Ha rris wa s the gunman. ¶ 40 Christina was asked about a statement she made when she selec ted Har ris from the photo

arr ay that her selec tion wa s based on his hair and the sha

pe of his hea d. She explained that

was part of it, and also the shape of his eyes wh i ch s he described as round rathe r than almond-shape d, and his ear s. Christina testified that she was cer tain of her identification of Har ris as the pe rson who shot her. ¶ 41 Although J anew ay was listed as a witness for the State, she did not testify at trial. L ozano and Dora n, who enter ed the liquor store shortly afte r the shootings, also did not testify

. L ee testified and his testimony was consistent with the acc ount 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 i n t es t ified as a defense expert in eyewitness identification. MacL in, an assistant profe ssor at the University of Norther n I owa, holds advanc ed degree s in
psycholog y

. Prior to trial, MacL in prepa red a repor

t containing 18 opinions re l ating to the fallibility of eyewitness identification, including, among others, t h e conce pt of “we apons focus,” i.e.
, that when a person is threatened with a gun, the per son’s attention is drawn to the wea pon and not the fac e of the person holding it, thus making l at er identification less reliable ; the difficulty inhere nt in eyewitness identification of offe nders of a differ ent rac e; and the eff

ect that imag es o f a suspect shown on broadc ast media have on later identifications by eyewitnesses. Over the State’s objection, the trial court ultimately g rante d defe nse couns el ’s reque st that MacL in be permitted to testify reg arding cross-r acia l identifications and wea

pons focus. Def

ense counsel did not pursue tender ing MacL in as an expert on the eff

ect of media cove rag e on eyewitness identification. ¶ 43 Following his convictions, which, as noted, wer e aff irmed on direc t appea l, Har ris filed, with the as sistance of counsel, a postconviction petition on April 1, 2008, that raised 10 issues. Attache d to the petiti o n we re medical rec ords, police repor ts, and numerous aff idav i ts, including those of J anew ay , Dora n, MacL in, Dr. Robert Hanlon, a neuropsycholog ist
, an d Matthew McQua id, one of Har ris’s trial attorney s. Har ris

-8-subsequently amende d the petition to include two issues challeng ing his death sentenc e. The

circ uit court g rante d the State’s motion to dismiss on J uly 23, 2010. Whil e Har ris’s motion
to rec onsider was pending
, his death sentenc e was commuted to natura l l i fe

. On April 15, 2011, the circ uit court denied Har ris’s motion to rec onsider. Har ris timely filed this appea l.

¶ 44 ANALYSI S ¶ 45 On appea l, Har ris contends that the circ uit court err ed in dismiss ing his petition because h e made a substantial showing that the State violated its constitutional duty to disclos e exculpatory evidenc e by not informing the defe nse that J anew ay rec anted her identification of Har ris. Additionally
, Harri s co n t ends that he made a substantial showing that his trial attorney s wer e ineffe ctive for failing to prese nt (1) exculpatory evidenc e, including that J anew ay lied when she initially identified Har ris and that two of the victims told by standers that two men committed the shootings, and (2) expert testimony reg arding the eff ect of
p o s tevent information on the reliability of eyewitness identification, and for failing to reque s t

a fitness hear ing. Finally
, Har ris contends that he made a substantial showing that his waiver of the rig ht to counsel was not kno wi n g an d i n tellige nt, that he was not competent to repr esent himself, and that there was a bona fide doubt reg arding his fitness to stand trial, which should have been e x plored by the trial cour

t at a fitness he aring

. ¶ 46 The Post-Convi ction Hea ring Act (Ac t) (725 I L CS 5/122-1 et seq. (West 2008)) provides

a proce dural mecha

nism by which any person imprisoned in the penitentiary may asser t that there was a substantial denial of a fede ral or state constitutional rig ht in the proce eding that resulted in his or her conviction. 725 I L CS 5/ 122-1(a ) (W est 2008); People v. Harris
, 224 I ll. 2d 115, 124 (2007). Postconviction proce eding s may consist of up to three stag es. People

v. Pendleton
, 223 I ll. 2d 458, 471-72 (2006). At the first stag e, the circ uit 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 circ uit court may appoint counsel for the defe ndant and the State may move to dismiss the petition. Id

. At the second stag e, the rele vant inquiry is whether the petition sets forth fac ts that, if true, make a s ub s t an tial showing of a constitutional violation. Id. A petition that is not dismiss ed at the second stag e proce eds to the third stag e whe re the circ uit court conduc ts an evidentiar y hearing. Id. ¶ 47 At both the second a nd third stag es of postconviction proce eding s, the defe ndant bea rs the burden of making a substantial showing of a constitutional violation. Pendleton
, 223 I ll. 2d at 473. At the second stag e of the proce eding s, all well-ple ad ed fa ct s not positively rebutted by the trial rec ord are taken as true. Id. The circ uit court does not eng age i n fac tfinding or cre dibilit y deter minations at the second stag e; rathe r, such deter minat i o n s are made at the evidentiar

y stag e. People v. Coleman
, 183 I ll. 2d 366, 385 (1998). Her e, the circ uit court g rante d the S t ate’s motion to dismiss Har ris’s postconviction petition. The decision to g rant a second- stag e motion to dismiss is a matter of law and subject to de novo revie w. Id. at 387-88; Pendleton , 223 I ll. 2d at 473.

-9-¶ 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), when it failed to di s cl o s e t h at J anew ay rec anted her identification of Har

ris as the person s h e s aw i n t h e parking lot afte r the shootings. In an aff idavit attached to the postconviction petition, Janewa y attests that afte r she testified in a deposition that Har

ris was the person she had seen outside the liquor store on the day of the shootings, she continued to me et with pr osecutors. On one such occa sion prior to trial, she told a fema le assistant State’s Attorney whose name she could not rec all that she lied at her deposition and that Har

ris was not the man she had see n outside the store. ¶ 50 I t i s we l l s et t l ed that “the prosec ution must disclose evidenc e that is favor able to the

acc used and material either to guilt or to punishm ent.” ( Interna l quotation marks omitted.) People v. Harris
, 206 I ll. 2d 293, 311 (2002) (quoting Brady
, 373 U.S. at 87). The standard for materia lity under Brady is whether there is a rea sonable probability that, had the evidenc e been disclosed to the defen s e, t h e re sult of the proce eding would have been differ ent. Id. Under this standard, a revie wing court does not consider the sufficie ncy of the evidenc e, but rathe r whether “the favor able ev i d ence could reasonably be taken to put the whole case in such a differ ent light as to undermine confide nce in the verdic t.” (I nterna l quotation mar

ks omitted.) Id. at 311-12 (quoting People v . Coleman , 183 I ll. 2d 366, 393 (1998)). ¶ 51 In Kyles v. W

hitley
, cited by Har

ris, the Supreme Court commented that “the Constitution is not violated ever

y time the g overnme nt fails or chooses not to disclose evidenc e that might
prove helpful 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 prosec utors have both the discretion to deter

mine whether disclosure is require d and the responsibili t y “to gaug e the likely net eff

ect of all such evidenc e and make disclosure when the p o i n t of ‘re asonable probability ’ is rea ched.” Kyles , 514 U.S. at 437. ¶ 52 At t h e o u t s et , i t should be noted that the premise of Har ris’s Brady argument is his contention that the State’s ca se ag ainst him at trial was “w eak” and thus the State’s fa ilure
to disclose J anew ay ’s rec antation takes on g reater signific ance

. That char acte rization is not borne out by

the re cord. ¶ 53 The State’s evidenc e at trial tied Har ris to t h e cr i m e t h ro u gh t h e testimony of two
eyewitnesses and uncontrove rted proof that, fr o m May 7 throug h May 12, Har ris was in possession of the distinctive ty pe of wea pon and unique ammunition used on the night of the murders. In particula

r, Helen and Christina–two eyewitnesses/victims–identified Ha rris as the shooter shortly

afte r the incide nt a

nd never wave red from that position. The State a lso 3

T o the ext ent Harri s cl ai m s tha t Hel en and Chri st ina wer e “t ent at ive” in the ir ide nti fi cat ion s 3 bec aus e (1) Hel en sai d she was “70 % sur e” tha t Harri s was the sho ote r af te r viewin g the phot o arra y, but want ed to see him in per son , (2) Chri st ina al le gedly tol d a pol ic e offi cer she did not get a good loo k at the sho ote r’ s fa ce (a st at ement she den ie d m aking), and (3) bot h Hel en and Chri st ina asked tha t Harri s app roa ch the two-way m irror twi ce when the y ident if ie d him i n the li neup, Harri s was

a b l e to ful ly exp lor e the se is sue s thr ough cr oss

- exa m ina ti on of Hel en and Chri st ina and the
te st imony of oth er wit nes ses at tr ia l. T he Sta te ’s fa il ure to dis cl ose J ane way’s re can ta ti on thu s had

-10-trac ed possession of a .40-ca liber Glock, the ty pe of wea pon used in the incident, and its sole-sourc e ammunition to H a r ris

. M ic h ig an police office r Z elko testified that six day s befor e the shooting, Har

ris was in her

custody . He disar

med her and esca ped. Har ris took Z elko’s .40-caliber semiautomatic Glock handgun loaded with .40-ca liber, jacke ted Fe dera l Hydrashoc k hollow-point ammunition. Fire arms expert J eff rey Parise t es tified that three bullets rec overe d from the v i ct ims and the scene wer e .40-ca liber, jacke ted Fe dera l Hydrashoc k, hollow-point bullets. A b u l let rec overe d from Ambalal’s body and another found on the floor of the store wer e fired from one gun t o t h e exclusion of all others. The fired car tridg e case s rec overe d from the store had marking s that could only have been made by the firing pin of a

. 4 0 -c ali ber handgun manufa cture d by the Glock Company

. Sarelli testified that two day s befor e the shootings Ha rr i s asked his help in selling a .40-ca liber Glock handgun, which Har ris showed to Sar elli. H arr is w as living at the Aloha Motel, five blocks from the scene of the shootings. In the fac e of the fore g oing evidenc e, the fac t that the

wea pon was not rec overe d does not translate into a finding that Har ris was convicted on the basis of “w eak” evidenc e. Consequently , in light of the stre ng th of the State’s case a g ainst him, Har ris fac es an uphill battle t o demonstrate that the sole instance of non-disclosure raised in his petition rises to the level of a Brady violation. ¶ 54 Taking the nondisclosure of J anew ay ’s rec antatio n as t ru e, t h i s ev i dence is neither materia l nor exculpatory

. First, J anew ay was not an eyewitness to the shootings. She and her husband arr ived at the liquor store afte r the shootings. J anew ay was sitti ng in the passeng er seat of a car outside the liquor store and her view of the sto re en t ra n ce was obscure d by Christina’s car g o van. After her husband went inside the store and had been in the store for 4
two minutes or so, she saw a man walking on the sidewalk in f ront of the store, but she did
not see him until he walked i n front of the van and he then p ro ce ed ed to walk through the parking lot betwee n the van and her car

. It was not until J anew ay s aw t he composite on television that she contac ted the police and told them the man in the composite was the man she had se en in front of

the store. ¶ 55 Melville J anew ay , L o z an o , an d Do ra n , who eac h enter ed 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 sidewalk wa s the shooter wa s remote, at best. There was there fore no rea son

no e ff ect on t his as pec t o f Ha rr is ’s def ens e.

J ane way’s af

fi davit sub m it te d wit h Harri s’ s pos tc onvict ion pet it ion cl ear ly overst at es her 4 dep osi ti on te st imony : “At tha t dep osi ti on, I sai d tha t Ric ar do Harri s was the man I saw come out of the li quor st ore and in the li quorst ore par king lot. ” (Em pha si s added .) In her depos it ion , Ja newa y doe s not say anythi ng abo ut see ing a m an exi t the st ore

. T he nex t sen te nce of the af fi davit
, however
, st at es onl y tha t J ane way was not te ll ing the truth when she ide nti fi ed Harri s “ as the man I saw in the li quor st ore parki ng l o t

. ” ( E mphas is add ed.) T his sec ond sen te nce is ent ir el y con si st ent wit h the pol ic e re por t in whic h she ind ic at ed tha t she cou ld not see the st ore ’s ent ra nce fr om the car bec aus e her view was blo cked by He le n and Chri st ina ’s van. Harri s’ s ef for t to use the m is st at ement in the fi rs t sen te nce to ar gue tha t J ane way m ust have see n someone oth er tha n Harri s come out of the st ore is th us f act ual ly uns uppo rt ed.

-11-to be lieve the man J anew ay had seen was connec ted with the shootings until J anew ay later

claimed that Har

ris, the person who had alre ady been identified by Helen as the gunman, was the man she had seen that day

. As Har ris’s trial counsel noted at a pretria l hearing, J anew ay ’s orig inal acc ount placing Har ris at the scene at least sever al minutes a fter the shootings and afte r others ha d arr ived on the sce ne wa s improbable. ¶ 56 Second, J anew ay did not testify at trial. The jury never hear d that someone who ar rived
at the store afte r the shootings identified Har ris as being at the scene

. Instead, the jury found Har ris guilty on the basis of the identification made by the surviving victims and the circ umstantial ev i d en ce that place d Har ris in the vicinity of the liquor store prior to the shootings and connec ted Har ris to a wea

pon of the same make and caliber and with the same unique ammunition as the wea pon u s ed in the crime. There fore
, J anew ay ’s initial identification neither

played a role in Harr is’s conviction nor is it reasona bly probable that h er rec antation, had it been disclosed, would have produce d a differ ent result at trial. He r testimony either w ay

was simply

not material. ¶ 57 Finally
, J anew ay ’s rec antation was not e x culpatory or even “fa vorable ” to H arr is. I f no witness place d Har

ris in the parking lot sever al minutes afte r the shootings, it wo uld not make it less likely

that he wa s, in fact, the shoote r. ¶ 58 In a differ ent vein, Har ris contends that J anew ay ’s initial identification of him a fter the composite an d h is photo wer e broadc ast on television and in newspa pers and her later admission that the person she saw was not, in fac t, Har ris, would have bolstered the defe nse theory that eyewitness identifications following media display s of a suspect’s likeness are inhere ntly unreliable

. Whil e J anew ay ’s about-fa ce may theore tic al l y illust rate one of MacL in’s opinions (which defe nse counsel elec ted not to pursue at trial), its rele vance is 5 exceeding ly marg inal in the context of a case wher e two victims iden t i fi ed Harris from a photo arr ay without any exposure to media cover ag e. Thus, while J anew ay ’s rec antation may have tended to show that she was suscept i b l e to being influence d by imag es of Har ris she

saw in the media, it would have had absolutely no bearing on the vali d i t y of Helen’ s and Christina’s identifications. ¶ 59 Har

ris’s attempt to bolster his Brady violation claim by analog i z ing the State’s fa ilure
to disclose J anew ay ’s rec antation to the failure to disclose an informant’s statements in Kyles is without m erit. Virtually the only simil arity

betwee n J anew ay

and the infor

mant in Kyles is that neither testified at trial. The informant whose statements wer e never disclosed in Kyles

was “esse ntial” to the State’s investigation and he “ ‘made the case ’ ” ag ainst the defe ndant. Kyles
, 514 U.S. at 445. Her e, J anew ay ’s statement was disclosed to defe nse couns el and
g iven the fac t that she was not an eyewitness to the shootings, her testimony was clea rly not essential to the State’s c ase. ¶ 60 Moreove r, in this case , the prosec ution’s failure to disclose J anew ay ’s rec antation is the only claimed Brady violation. In contra st, the prosec ution i n K yles failed to disclose contempo r a

n e o u s e ye w it

n e s s s ta te ments c o ntaining inconsistent descriptions of the offe nder,

For the re aso ns dis cus sed inf ra ¶¶ 65- 66, t h i s ta ct ic al dec is ion doe s not giv e ri se to an 5 ine ff ect ive as si st anc e c la im.

-12-numerous (and manifestly contra dictory ) statements g iven by the informant (some of which tended to implicate the inf ormant in the murder), information tending to showdefe ndant’s vehicle was not parke d in the lot wher e the mu rd er occur red, and evidenc e linking the informant to other crimes at the scene

. The Supreme Court found that the cumulative eff ect of the suppre ssion of this evidence unde rmined conf idence in the verdic t. Id. at 453. ¶ 61 The same cannot be said in this case

. The fact that J anew ay rec anted he r identification of Har ris as the person she saw outside the store afte r the shootings does not “put the whole

case in such a differ ent light as to undermine confide nce in the verdic t.” Thus, we conclude that Har ris has not made a

substantial showing of

a Bradyviolation.

¶ 62 I I . Har ris’s I neff ective A ssistance Claim ¶ 63 Next, Har

ris contends that he has made a substantial showing that his trial attorney s wer e ineffe ctive for failing to (1) adequately investigate or prese nt at trial J anew ay ’s statement to

a prosec utor that she lied when she identified Har ris, and statements that woul d h av e supported the theory that t wo men other than Har ris shot the victims, and (2) prese nt testimony from MacL in concern i ng the eff ect of postevent publicity on the reliability of
eyewitness identification. ¶ 64 Ineff

ective assistance of counsel claims are measure d ag ainst the standard s et fo rt h in Strickland v. W

ash i ngton , 466 U.S. 668 (1984). To preva il on a claim of ineffe ctive assistance
, a defe ndant must show both that counsel’s repr esentation fell below an objective standard of

rea sonablene ss a

nd that there is a rea sonable proba bility that, but for counse l’s unprofe ssional err ors, the result of the proce eding would have been differ ent. Id. at 687-88, 694; see also People v. Edwards
, 195 I ll. 2d 142, 162-63 (2001). “A rea sonable probability is a probability sufficie nt to undermine confide nce in the outcome.” Strickland
, 466 U.S. at 694. Be cause a defe ndant must establish both prong s for a succe ssful ineffe ctive assistance claim, a court considering such a claim need not deter mine the rea sonablene ss of counsel’s perf ormanc e befor e considering whether defe ndant s u ff er ed prejudice as a result 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 investiga te and prese nt evidenc e reg ardingJ anew ay ’s fa u l t y identification, as previously discussed, J anew ay ’s admission the person she s aw outside the store sever al minutes afte r the shootings was n o t Har ris is not exculpatory evidenc e, nor is it evidenc e that someone other than Har ris committed the shootings. There is nothing in J anew ay ’s af fidavit to sugg est that the individual she saw w as the gunman. ¶ 66 I n d eed, contra ry to the aff

idavit submitt ed by M cQ u ai d i n s up p o rt o f Ha rr i s ’s postconviction petition in whi ch h e attests that had he known J anew ay rec anted he would have called her as a witness at tria l, McQuaid’s c o-counse l expressed the opposite opinion

re garding the value of J anew ay ’s identification of Har ris at a pretria l hearing. Co-counsel stated (with McQua id prese nt): “[O]ur position is it [ J an eway ’s testimony ] is completely inconsistent with what the two su rv i v i n g v ictims describe, that five minutes later Ricardo Har ris was standing outside the liquor store milli ng ar ound.” Given trial counsel’s understanda

ble skepticism regard i n g J anew ay ’s identification of Har ris, if counsel had lear ned of J anew ay ’s rec antation prior to trial, she would have become irrele vant as a witness

-13-to both the State and the defe nse. Thus, Har ris has not met the p re

j u dice prong under Strickland and, as a result, he has not made a substa n t i al s h o wi ng that counsel was ineffe ctive for

failingto further

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

ris also argues that his trial attorney s wer e ineffe ctive for failing to pursue e vidence that two shooters wer e involved in the crime. In particula r, Har ris points to evidenc e t h at Dora n and L ozano, who arr ived at the store shortly afte r the shootings, wer e told by separ ate victims that the shooters wer e “two black men.” Acc ording to pol i ce repor ts, Dora n told police that one of the fema le victims came to the fro n t of the store, told her that multipl e people had been shot by two men and asked her to call 911. L ozano also told police that one of the male victims tol d him that two indivi duals wer e re sponsible for the shooting s. ¶ 68 As a threshold issue, acc epting as true these witness statements, they do not exclude the
pos s i b i l ity that Har

ris was one of the shooters. Consequently
, the introduction of victim
statements th at t wo s hooters wer e involved would not have helped 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, Har ris’s postconviction petitio n d o e s n o t r aise a substantial issue on this point

. Helen is the on l y victim who walked to the front of the store afte r she had been shot, and Helen testified that she told Dora n only that multipl e people had been shot and asked her to call 911. Dora

n’s aff idavit attache d to Har

ris’s postconviction petition states that she cannot

reme m b er Helen saying any thing other than that they had been shot and asking her to call 911. Thus, g iven that Dora n’s af fidavit does not support the two-shooter theory , it follows that counsel c annot be de emed inef fec tive for f

ailing to pr esent he r testimony

. ¶ 70 Wi t h re s p ec t t o L o z an o ’s s t at ement to the police, the rec ord ref lects that Har

ris’s appointed attorney s reque sted and rec eived a delayed trial date so that they could locate and interview L ozano, in the hopes that his testimony could support the two shooter theory

. There is nothing in the rec ord to indicate the result of that interview, but the defe nse did not, in fac t,

ca ll L ozano as a witness. Har ris has not attache d an aff idavit from L ozano to the petitio n

. Consequently
, beca

use Har ris has not even established what L ozano’s testimony would have been, Har ris has failed to demonstrate that his couns el we re i neff ective for not prese nting L ozano’s testimony

at trial. ¶ 71 Har

ris also argues that trial counse l should have pre sented Dor an’s statement to police that she saw two men running awa y from the direc tion of the liquor store five minutes befor e she arr ived at the store. Ag ain, acc epting Dora n’s statement to the police as true, it does not discount the possibili ty

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

ther, Har ris’s arg uments reg arding the rele vance of Dora n’s statement are internally inconsistent. In his ineffe ctive assistance argument, Dora n’s statement supposedly supports the two-shooter

theory

. Howeve r, in conne ction with his Bradyargument, Har ris contends that Dora n must have enter ed the store almost immediately afte r the shootings beca use Helen

Harri s al so doe s not ar ti cul at e w h a t woul d have pro m pte d his tr ia l counse l to “f urt her 6 inves ti gate” J a n eway giv en the con si st enc y of her pre tr ia l ide nti fi cat ion s of Harri s. T aking the nond is cl osu re of her re can ta ti on as true, the re woul d have bee n no re aso n for def ens e counse l to ta ke
st eps to obt ai n an y addit ion al in for m at ion fr om J ane way.

-14-testified that she encounte red Dora n within a minute afte r she was shot. Thus, und er this iteration of Har

ris’s argument, Dora

n’s statement reg arding the two men she saw running in the opposite direc tion five min u t es earlier is obviously irrele vant beca use she would have seen the m even be fore the shootings oc curr ed. 7 ¶ 73 Har

ris fur t h er co n t en ds that his trial attorney s wer e ineffe ctive for failing to present expert testimony about how postevent publicity can lead to misidentification. In the context of this case involving two eyewitnesses who identified Har ris prior to seeing any pictures of him in the media, this a

rgument is spe cious. Moreove r, the only photo of Har ris that Helen and Christina saw on television prior to the phy sical lineup in August was the one they had alre ady picked out of the photo arr ay in May

. It is, there fore
, impossibl e that their exposure to this photo could have produce d an unreliable i dentification. Be cause M ac L i n’s opi nion
reg arding the possibili ty that postevent publicity can produce unreliable identifications 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 Seand His F itness to St and Tria l ¶ 75 Finally
, Har

ris contends that he made a substantial showing that his w aiver of the rig ht
to counsel was not knowing and intelligent, that he was not competent to repr esent himself, and that there was a bona fide doubt reg arding his fitness to stand trial. Wit h reg ard to the fi t ness claim, Har

ris argues that the trial court err ed by not order ing a fitness hearing or, alternatively , that trial counsel wa s ineffe ctive for not reque sting a

fitness hea

ring

. ¶ 76 It is nece ssary to place Har ris’s arguments on these issues in context. For over two y ear s following his arr aig nment in August 1999, Har ris was repr esente d by attorney s from the Public Def

ender ’s office

. At Har

ris’s reque st and afte r the extensive proce edin gs detailed above, Har

ris was allowed to waive counsel and he repr esente d himself from October 2001 until March 18, 2003, whe n, ag ain at his reque st, counsel were appointed t o repr esent him at trial. Tria l commence d 10 months later in J anuar y 2004. ¶ 77 Although Har

ris argues that sever al signific ant pretria l steps wer e taken during his pe riod of self-r epre sentation, including the depositions of witnesses (conduc ted in open court in the
prese nce of the trial judge ) and th e ap p ointment of an expert, he does not claim that there

wer e any adver se ruling s or other developments that prejudi ced the prepa ration of his defe nse. Fur

thermore
, during the 10 months he was repr esente d by appointed counsel prior
to trial, Har

ris does not p o i n t to any occa sion on which counsel ever asked for and wer e ref used the opportunity to revisit any motions or ruling s made during th e t i m e Ha rris
proce eded pro se

. ¶ 78 There fore
, this case i s cl ea rl y u n l i k e t h o s e i n wh i ch criminal defe ndants wer e unrepr esente d for the entirety of their criminal prosec ution. See People v. Lego
, 168 I ll. 2d 561 (1995). But since even a sh o rt p er i od of self-r epre sentation can g ive rise to a

Harri s ra is es an add it ion al ar gum ent re gardi ng ano the r wit nes s who loo ked out the wind ow 7 of her tr ai le r hom e a cr oss th e s tr eet fr om th e l iqu or st ore af

te r t he s hoot ings. S he c la imed she sa w

a “su spi ci ous ” m an st and ing beh ind a st re et si gn loo king int o the st ore

. T he la ck of re le vance of thi s te st imony is so obvious th atwe wi ll notse par at el y addre ss it

.
-15-constitutional claim if it occur s during a “ ‘cr itical stag e’ ” of criminal proce eding s ( People

v. Vernon
, 396 I ll. App. 3d 145, 154 (2009))
, we will examin e Ha rr i s ’s claim that he is entitled to postconviction relief beca use he was not competent to waive his right to counsel. ¶ 79 Be fo re a co u rt acc epts a waiver of counsel, it must deter mine that the defen d an t i s competent to sta

nd trial and that the waiver of counsel has been knowing ly and voluntarily made. Godinez v. Moran
, 509 U.S. 389, 400 (1993); see also People v. Kidd
, 178 I ll. 2d 92, 104 (1997). A knowing and voluntary waiver require s a full awa

rene ss of the nature of the rig ht being abandone d and the conseque nces of the decision to abandon it. Kidd
, 178 I ll. 2d
at 104-05. In connec tion with allowing a d ef en d an t to proce ed pro se , the trial court must deter mine, in o p en co u rt , that the defe ndant understands the nature of the char g e, the minimum and maxi mum sentenc e proscr ibed by law, and that he has a right to have counsel appointed if he is indige nt. I ll. S. Ct. R. 401(a) (ef f. J uly 1, 1984). The rec ord amply ref lects the trial cour

t’s strict adher ence to the fore g oing r equire ments. ¶ 80 It i s ax i o m at i c t h at t h e prosec ution of a defe ndant who is not fit to stand trial is a violation of due proce ss. See People v. Easley
, 192 I ll. 2d 307, 318 (2000) (and case s cited there in). A defe ndant is presumed to be fit to stand trial, and i s o n l y en t i tled to a fitness hear ing when a bona fide doubt r eg arding the defe ndant’s fitness is r aised. Id. A defe ndant will be considere d unfit only if, beca use of the defe ndant’s phy sical or mental condition, the defe ndant is unable to understand the nature or purpose of the proce eding s and assist in his

or her defe nse. Id. Relevant fac tors that may be considere d by t h e t ri al court in assessing whether a bona fide doubt reg arding fitness exis ts include a defe ndant’s irrational behavior
, demea nor at trial, and a

ny prior medica l opinion on defenda nt’s fitness to sta

nd trial. Id. at 318-19. ¶ 81 I f a defe ndant who is fit to stand trial has deter mined to waive the rig ht to counsel, a trial
court must acc ede to that reque st. “Although a court may consider a defe ndant’s decision to repr esent himself unwise, if his decision is fre ely
, knowing ly
, and intelligently 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)). Once the cour t has assure d itself that the waiver i s valid, it may not f orce a defe ndant to c ontinue to be repr esente d by counsel he does not w ant. Faretta v. Calif ornia , 422 U.S. 806, 833-34 (1975). ¶ 82 Har

ris is entitled to relief on this postconviction claim only if the fac ts in h i s p et i t i on make a substantial showing that the trial court would have order ed a fitness hearing if it had been apprised of the evidenc e now offe red. Easley
, 192 I ll. 2d at 319. In support of his claim, Har ris submitt ed two aff

idavits from Dr. Robert Hanlon. Dr. Hanlon attested that Har ris suffe red four signific ant incidents of head trauma in his lifetime. Moreove r, neuroc og nitive testing results indicated three cate g ories of mild to moderate neuroc ognitive impairment in the following are as: (1) attention and information proce ssing, (2) memory , and (3) executive functioning

. Finally
, testing dem o n s trated a larg e differ ence betwee n Har ris’s verba l and nonverba l I Q score s. Dr. Hanlon is of the opinion “to a reas o n ab l e d egree of
neuropsycholog ical cer

tainty ,” that at the time he waived his rig ht to counsel Har ris “could
not have been able to understand the dang ers and disadvantag es of repr esenting himself, nor could he ha

ve bee n fully

awa re of the conse quence s of proc eeding without a lawyer.”

-16-¶ 83 Al though the State contends that Dr. Hanlon’s finding s “to a reas o n ab l e d egr ee o f

neuropsycholog ical cer

tainty” utiliz e an i nvalid standard (a contention that may well be

corr ect) , we note that even if w e take as true Dr. Hanlon’s opinion that Ha rris suffe rs from
cognitive impairments, this does not compel the conclusion that Har ris has raised a bona

fide d oubt as to his fitness to stand trial. “F itness speaks only to a person’ s ability to function within the context of a t ri al

. It does not ref er to sanity or competenc e in other are as. A defe ndant can be fit for trial althoug h his or her mind may be otherwise unsound.” Id. at 320. The rele vant inquiry is whether Har ris was able to understand the nature of the proce eding s and par ticipate in his defe nse. ¶ 84 Nor is it nece ssary , as Harris contends, to weigh the credibility o f Dr. Hanlon’s ve rsus Dr. Seltz berg ’s opinions in order to rea ch this result. Given that Har ris repr esente d himself for over a y ear , during which time he filed motions, appea red befor e the trial court numerous times and deposed a number of witnesses, the rec ord provides ample evidenc e t h at Har ris understood the nature o f t h e p roceeding s ag ainst him and was able to participate in his defe nse. Despite the voluminous rec ord on appea l, Har ris has not identified a single occa sion
upon which he said or did any thing indicatin g that he was delusional or otherwise out of touch with rea lity . Indeed, the rec ord demonstrates otherwise

. ¶ 85 Unlike the defe ndant in Lego
, who in fo rm ed t h e co u rt t h at h e h ad “ ‘40- y ear s experience ’ ” in repr esenting himself and others and believed that his leg al skills equale d or exceede d those of any attorney ( Lego
, 168 I ll. 2d at 565), Ha rris had no such i llusions. He

rec og nized that repr esenting himself put him at a disadvantag e, complained that it was “unfa ir,” and ultimately reque s t ed appointed counsel prec isely beca use he rec og nized he could not eff

ectively repr esent him self at trial. The recor d also shows that Har ris’s l ack of
cooper ation with his initial counsel and his ref usal to participate in the mitigation evidenc e portion of hi s trial with subsequent counse l was not due to his unfitness, but, rathe r, t o his
persona l antipath y toward his initial counsel and his conscious decision to ref rain from
prese nting any evi d e n c e in mi ti g a ti o n

. “ D e f

e n d a nt’ s u n w il lingness to cooper ate with counsel 8
cannot be deeme d equivalent with an inability to do so.” (Interna l quotation marks omitted.) Id. (quoting People v. O’Neal
, 62 I ll. App. 3d 146, 149 (1978))

. Har ris was cl early not delusional. ¶ 86 Finally the rec ord flatly ref utes the notion t h at Ha rr i s co u l d n o t kn o wi n gl y and intelligently wai v e h i s rig ht to counsel beca use neuroc og nitive impairments rende red it impossibl e for him to understand the risks and disadvantag es of repr esenting himself. When Har ris first informed the court of his desire to proce ed pro se , the court urged h i m to

rec onsider his decision and continued the case for sever al wee ks. When he returne d, Har ris advised the court that he had rec onsidered g iven his lack of regular acc ess to the library and law books. Thus, Har

ris clea rly understood that there would be disadvantag es in proce eding

As we have al re ady obs erved ( sup ra ¶ 34 n.2)
, Harri s’ s dec is ion to re fr ai n fr om pre sen ti ng 8 eviden ce in m it igati on can be re adi ly exp la ine d by the fa ct tha t, as not ed by our sup re m e cou rt , suc h eviden ce woul d not ha ve bee n hel pfu l and
, in some re spe ct s, woul d have pro ved det ri m ent al to Harri s i n t he s ent enc ing pha se.

-17-without a lawyer and consciously chose to continue with his appointed counsel. After Har ris was permitted to repr esent him self for a li ttle over a y ear , he ag ain informed the court that he did not believe he should continue to proce ed without a lawyer and, at his reque st, private counsel re prese nted him from that point throug h trial and sente ncing

. ¶ 87 Thus, Har

ris’s own conduct demonstrates that he was acute ly awa re of the risks of selfrepr esentation, so much so that he reve rsed course and reque sted the appointment of counsel
to repr esent him at trial. I n t h e fa ce of this rec ord, it is impossibl e for Har ris to make a substantial showing that he was either unfit for trial or incompetent t o d ecide to waive counsel. ¶ 88 Gi v en o u r co nclusion that Har ris was competent to waive counsel and that he did s o knowing ly and voluntarily
, it follows that the trial court did not err in failing to hold a fitness hear ing a nd Har ris’s counse l was not ineff ective f or fa iling to re quest one. ¶ 89 Fo r t h e rea sons stated here in, we hold that the circ uit court did not err in g ran t i n g t h e State’s motion to dismiss Har ris’s postconviction petition and we aff irm the judgme nt of the circ uit court.

¶ 90 Affir

med.

-18-