2014 IL App (1st) 120586 No. 1

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______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff

- Appellee, ) Cook County. ) v. ) No. 07 CR 20877 ) DANIEL PENA, ) Honorabl e ) James B. Linn, Defendant

- Appellant. ) Judge , p residing.

______________________________________________________________________________ JUSTICE HYMAN delivered the judgment of the court , with opinion

. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion

. OPINION ¶ 1 After a bench trial, d efendant Daniel Pena appeals his conviction for aggravated battery of a peace officer , contend ing that the State failed to prove him guilty beyond a reasonable doubt because the officer's testimony was not credible and was disputed by a videotape of the incident.
Pena also contends that he was denied his constitutional right to self

- representation, an d that the trial court failed to conduct a proper inquiry into his pro se posttrial claim of ineffective assistance of counsel. The trial court sentenced Pena to six years' imprisonment as a Class X offender based o n his criminal history. We affirm

. ¶ 2 With regard to Pena's contention that the State fell short of proving guilt beyond a reasonable doubt , t he trial court as the trier of fact occupies a superior position to assess O fficer Lee's credibility and resolve any conflicts in the evidence, and it had the benefit of the videotape, even though Lee's testimony conflicted some what from the first trial . In addition, the trial court1

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- did not deny Pena his right to self

- representation ; no error occurred and the plain error doctrine does not apply. Finally , w e find the trial cour t acted properly when it dismissed , without further inquiry , Pena 's pro se posttrial motion of ineffective assistance of counsel. ¶ 3 BACKGROUND ¶ 4 F ollowing a 2009 jury trial , Pena was convicted of aggravated battery of a peace officer

. 720 ILCS 5/12

- 4(b)(18) (West 2006 ). A videotape of the incident , however, went missing during th at trial , only to be located by the State after th e trial concluded

. W hile his direct appeal was pending, Pena filed a petition for relief under the Post

- Conviction Hearing Act (Act) (725 ILCS 5/122

- 1 et seq . (West 2008)) c laim ing actual innocence and a due process violation based on the discovery of the missing videotape. The circuit court summarily dismissed Pena 's petition, but on appeal, this court granted the State's motion for summary remand and remanded the petition for further proceedings under the Act. People v. Pena , No. 1

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- 3276 (2010) (dispositional order). On remand, the parties agreed that the videota pe was relevant, and the circuit court granted Pena a new trial. (Following that ruling, this court dismissed defendant's initial direct appeal. People v.
Pena , No. 1

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- 0932 (2011) (dispositional order).) ¶ 5 On the next court date, Pena informed the court that he wanted to fire his public defender. The trial court denied his request, stat ing that Pena would then have to represent himself, and commented on the excellent job counsel had done for him

. Pena replied that he understood , but that he needed a one - week continuance to file a motion. The court explained to Pena that he could not choose his own court

- appointed attorney, and therefore, would have to represent himself. Pena said he was going to represent himself , and the trial court admonished him about the possible sentences he faced , the disadvantages of self

- representation , and that he would be held to the same standards as a lawyer. Pena told the court that he did not understand why his1

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- trial counsel disagreed with everythi ng his appellate counsel told him

. When appointed counsel asked the court if Pena was going to be allowed to represent himself , the court responded " [n]o, I don't think he's capable of it." Thereafter, Pena asked a few questions about the videotape and never again raise d the issue of self

- represent ation

. T hree months later, Pena h ire d private counsel , and the public defender withdrew

. ¶ 6 At trial, Cook County correctional officer Alan Lee testified that on September 22, 2007, he responded to an "all ava ilable" call in Division 9 of the jail and saw Pena resisting officers while on the ground , handcuffed and shackled

. Lee and a group of officers escorted Pena to a downstairs holding cell , and O fficer Lee could see that Pena was angry and upset, and that he was bleeding from his mouth. Officer Lee's responsibility was to unlock and open the holding cell door to allow officers to place Pena inside th e cell, and he did not physically touch Pena or assist with Pena 's movement to the cell. When Pena refu sed to enter the cell, the officers picked him up, carried him in, and placed him on the bench in the back of the cell. Pena repeatedly yelled obscenities, and as the officers left the cell, Pena rose from the bench , and from a distance of seven feet, spit blood at the direction of O fficer Lee , which lan d ed on the Lee 's left forearm.
Pena also spit into the toilet , and told Lee that he was going to kill his "bitch ass." Officer Lee testified that he was upset and had to take an AIDS test. ¶ 7 Officer Lee acknowledged that during the first trial , he testified that Pena ran to the front of the cell, but after watching the videotape before testifying at the second trial , he saw that Pena did not do so. The video was played in court with Lee narrating the events

. Lee testified that the video showed that as he closed the cell door, Pena spit in his direction, and it landed on his left forearm

. Pena then spit into the toilet. Lee acknowledged that the video actually did not show
Pena spitting on him, but test ified that there was no reason why blood w ould have landed on his1

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- left forearm when Pena was standing forward of the toilet. The prosecutor replayed the video segment and asked the court to pay special attention to the audio. Afterwards, Lee testified that you can hear Pena spit, after which you hear the officer state "[o]h man, he just spit on me." ¶ 8 Officer Lee acknowledged that at first trial he testified that Pena ran to the front of the cell, lunged forward with his body, and made a blowing motion with his mouth to spit , but that

now he was testifying that Pena walked forward to the toilet, spit at the officer, then spit into the toilet . Lee maintained that the vi deo depicted th e se actions. Lee said after spitting on him, Pena spit into the toilet several times because his mouth was bleeding.. ¶ 9 Cook County correctional officer Edward Kern testified that six months earlier , on March 27, 2007, Pena agreed to spea k with him about an incident in the jail Kern was investigating

. Pena asked to speak with him alone, awa y from the other detainees. Once the two were alone,
Pena spi t in the officer's face and told him "I'm going to kill your bitch ass." ¶ 10 The parties stipulated that at 6 p.m. on September 22, 2007, Pena was involved in an incident with correctional officer Williams during which Pena sustained an injury to his mouth that required medical treatment for bleeding and damaged teeth

. Pena was tak en to Cermak Hospital and had three teeth replace d. ¶ 11 Pena testified that during an argument, O fficer Williams punched him twice, knocking out two of his teeth and loosening a third

. Williams pulled Pena down to the ground, and O fficer Davis then kicked him in the head, causing him to lose consciousness. Pena regained consciousness, began choking on his blood and teeth, and spit them out of his mouth. Pena later received a settlement payment of $10,000 from those officers. Pena further testified that he never had any interaction with Lee and denied spitting on him. He testified that his threat was directed
at O fficer Williams , not Lee , and also denied threatening and spitting at O fficer Kern six months1

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- earlier. In rebuttal, the State su bmitted a copy of Pena 's prior conviction for child abduction as impeach ment

. ¶ 12 In announcing its decision, t he trial court stated that the videotape allowed it to hear and see what happened that day, and hear O fficer Lee spontaneously say that Pena spit on him. The court then found that the State proved Pena guilty beyond a reasonable doubt. Immediately thereafter, the trial court sentenced Pena to the minimum term of six years' imprisonment as a Class X offender based o n his criminal history. ¶ 13 Pena filed a timely pro se motion for a new trial claiming that his trial counsel rendered ineffective assistance. Pena alleged that counsel should have called Lieutenant Navarette to testify at the second trial because the video would have impeached his t estimony from the first trial. Pena also claimed that defense counsel stood during trial and said " '[m]y client guarantees that if you let him go this time nothing like this will ever happen aga in' (or close to this remark)." Although Pena acknowledged th at counsel retracted the remark, Pena claimed that he suffered prejudice because it was heard by the judge and the entire courtroom. With neither Pena nor counsel present, the trial court found Pena 's pro se motion merit less and denied it, noting that his lawyer was going to file a posttrial motion. There is no indication in the record , however, that counsel ever filed a posttrial motion. ¶ 14 ANALYSIS ¶ 15 Sufficiency of Evidence to Sustain Conviction on Aggrava ted Battery of Peace Officer ¶ 1 6 Pena first contends that the State failed to prove him guilty of aggravated battery of a peace officer beyond a reasonable doubt because Lee's testimony was not credible and was disputed by the videotape. Pena claims that Lee 's credibility was impeached because his testimony during the second trial differ ed significantly from the first trial , whe re he stated that1

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- Pena ran to the front of the cell, lunged forward, and blew spit on him

. Pena maintains that the video does not show that he sp i t in O fficer Lee's direction, but instead, shows that he was spitting into the toilet. Pena asserts that he had a legitimate reason for spitting blood, and any saliva that landed on O fficer Lee's arm could have been an accident. ¶ 17 The State responds that the videotape corroborated Lee's testimony and showed that Pena was irate, rose from the bench and moved forward in the cell closer to the door. The State argues that the audio establish ed that Pena spit at that precise moment, after which O fficer Lee spontaneously exclaimed "[o]h man, he just spit on me." The State further argues that Pena then threatened to kill the officer, which showed that the spitting was not accident al

. ¶ 1 8 When a defendant cl aims that the evidence is insufficient to sustain his or her conviction, this court must determine whether any rational trier of fact, after viewing the evidence in the light most favorable to the State, could have found the elements of the offense proved beyond a reasonable doubt. People v. Baskerville , 2012 IL 111056, ¶ 31. This standard applies whether the evidence is direct or circumstantial, and does not allow this court to substitute its judgment for that of the fact finder on issues involving witness credibility and the weight of the evidence. People v. Jackson , 232 Ill. 2d 246, 280

- 81 (2009). "Under this standard, all reasonable inferences from the evidence must be allowed in favor of the State." Baskerville , 2012 IL 111056, ¶ 31. In a bench trial, t he trial court, sitting as the trier of fact, determin es the credibility of the witnesses, weigh s the evidence, resolv es conflicts in the evidence, and draw s reasonable inferences. People v. Siguenza

- Brito , 235 Ill. 2d 213, 228 (2009). We will not reverse a criminal conviction based on insufficient evidence unless the evidence is so improbable or unsatisfactory that there is reasonable doubt as to defendant's guilt ( People v. Givens , 237 Ill. 2d 311, 334 (2010) ), n or will

we reverse simply because defendant claims that a witness was not credible or that the evidence1

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- was contradictory ( Siguenza

- Brito , 235 Ill. 2d at 228 )

. ¶ 1 9 To prove Pena guilty of aggravated battery of a peace officer , the State must show Pena intentionally or knowi ngly , and without legal justification, made physical contact of an insulting or provoking nature to a person he knew was a government officer engaged in the performance of his or her authorized duties. 720 ILCS 5/12

- 4(b)(18) (West 2006). ¶ 20 Viewed in the light most favorable to the State, the evidence show s that as officer Lee and a group of correctional officers escort ed Pena to a holding cell inside the jail , Pena was irate and yelling obscenities at the officers, and bleeding from the mout h. When Pena refuse d to enter the holding cell, officers carr ied him i nside and place d him o n the bench at the back of the cell. Officer Lee testified that, as the officers left the cell, Pena rose from the bench, and from a distance of about seven feet, spit blood at him which landed on his left forearm , then threatened to kill his "bitch ass." This evidence suffices to allow the trial court to find Pena intentionally spit on the correctional offic er, and thus, convict him of aggravated battery of a peace officer. ¶ 21 Having thoroughly reviewed the record, including the video, we agree with the trial court that the video corroborate s O fficer Lee's testimony. The video shows , in pertinent part, tha t a s the officers le ave the cell, Pena repeatedly scream s threats, obscenities and racial slurs , then
st ands up and walk s a few steps forward . A s Lee closes the cell door, one can hear Pena spit. At that moment, the camera is blocked by the lieutenant; however, immediately following the sound of Pena 's spit ting , O fficer Lee spontaneously and distinctly states, "he spit on me, man." ¶ 22 Contrary to Pena 's claim s that the video disputes Lee's testimony and that the spit could have accidentally landed on the officer's arm , we find the trial court could reasonably infer f rom the sound of Pena spitting, immediately followed by the officer 's spontaneous remark , that Pena spit on him intentionally, and not accidentally. This conclusion finds support in the evidence of1

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- Pena 's combative conduct towards the officers, and his threat to kill the officer's "bitch ass

. " Although officer Lee 's testimony conflicted in some respect s from that given at the first trial , the trial court , which was in the superior position to assess Lee's credibility and resolve any conflicts in the evidence , found with the benefit of the video that Pena was prove n guilty of the charged offense beyond a reasonable doubt. We fin d no basis for disturb ing the trial court's findings regarding the credibility of this witness and the weight of his testimony ( Jackson , 232 Ill. 2d at
284 ), and therefore affirm. ¶ 23 Self

- Representation ¶ 2 4 Pena next contends that the trial court's refusal to let him represent himself denied his constitutional right to self

- representation

. Pena claims that he made a clear, unambiguous request to represent himself, and the court abused its discretion when it denied that request base d on his lack of legal knowledge rather than determining if his waiver of counsel was voluntary and intelligent. ¶ 2 5 The State responds that Pena forfeited his argument because he did not raise it in a posttrial motion and did not argue for plain error r eview in his opening brief. Alternatively, the State argues that plain error does not apply because no error occurred

— P ena did not make a clear and unambiguous waiver of counsel, but instead, was request ing new counsel. In reply,
Pena argues that the secon d prong of the plain error doctrine applies because the improper denial of self

- representation constitutes structural error. ¶ 2 6 The United States Supreme Court has expressly held that the denial of self

- representation at trial is a structural error that render s a criminal trial fundamentally unfair and requires automatic reversal. People v. Averett , 237 Ill. 2d 1, 12

- 13 (2010) ( citing Washington v.
Recuenco , 548 U.S. 212, 218 n.2 (2006) )

. Accordingly, although Pena did not properly preserve1

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- his contention for review ( People v. Enoch , 122 Ill. 2d 176, 186 (1988)), we consider his argument for plain error ( Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967 ) )

. ¶ 2 7 The plain error doctrine is a limited and narrow exception to the forfeiture rule which can only be invoked after defendant first demonstrates that a clear or obvious error occurred. People v. Hillier , 237 Ill. 2d 539, 545 (2010). Pena has a constitutional ri ght to represent himself, but to invoke that right he must knowingly and intelligently waive his right to counsel. People v. Baez , 241 Ill. 2d 44, 115

- 16 (2011). "It is 'well settled' that waiver of counsel must be clear and unequivocal, not ambiguous." Id . at 116 ( citing People v. Burton , 184 Ill. 2d 1, 21 (1998) )

. Pena must "articulately and unmistakably demand[] to proceed pro se ," and if he fails to do so, he waives his right to self

- representation. (Internal quotation marks omitted.) Id

. ( quoting Burto n , 184 Ill. 2d at 22 )

. One reason Pena must make an unequivocal request to waive counsel is to prevent him from appealing the denial of his right to self

- representation. Id

. ¶ 2 8 O ur review of the record leads us to conclude that Pena did not seek to represent himself, but instead, sought to fire his public defender and replace her

. The record shows that Pena was granted a new trial, and on the next court date, he informed the court that he wanted to fire his public defender. The trial court initial ly denied that request and , in the colloquy that ensued, told
Pena that if he fired his counsel, he would have to represent himself. I t was thus the trial court,
not Pena , who initiated the idea of Pena representing himself , and a fter th is first exchange, Pena did not state that he wanted to represent himself, but instead, requested a week's continuance to file a motion. The court again told Pena that he would have to represent himself because he could not choose his court

- appointed counsel , and i t was then that Pena stated "[y]eah, I'm going to represent myself, your Honor." But , after the court advised Pena of the disadvantages and dangers of self

- representation, Pena did not pursue that request, but complained that he did not1

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- understand why his trial coun sel disagreed with everything his appellate counsel had told him. The trial court then clarified for appointed counsel that Pena was not going to be allowed to represent himself and remarked "I don't think he's capable of it." ¶ 2 9 Notwithstanding that com ment, the entire exchange shows that Pena did not ma k e a clear and unequivocal waiver of counsel, nor did he definitively invoke his right of self

- representation by articulately and unmistakably demanding to proceed pro se . Instead, Pena stated that he would represent himself only after the trial court advised him that self

- representation would be his only option if he fired his public defender. At th e time, the trial court obviously had no idea
Pena had funds to hire private counsel, and expressed doubt that he would be able to do so as he had been incarcerated for some time and was indigent. W ithin three months, however, Pena did hire private counsel who represented him throughout the second trial. We must indulge in every reasonable presumption against waiver of the right to counsel ( Baez , 241 Ill. 2d at 116), and in light of Pena 's own conduct following his remark that he was going to represent himself ( Baez , 241 Ill. 2d at 118) , we conclude that he never truly expressed a desire or intention to do so. Accordingly, we find that the trial court did not deny Pena his right to self

- representation, that no error occurred, and the plain error doctrine does not apply in this case. ¶ 30 Ineffective Assistance of Counsel ¶ 31 Pena finally contends that t he trial court failed to conduct a n inquiry into his pro se posttrial claim of ineffective assistance of counsel , but instead denied the motion sua sponte

w hen neither h e nor his counsel was present, requiring that his motion be remanded to the trial
court for the proper inquiry under People v. Krankel , 102 Ill. 2d 181 (1984)

. Pena argues that the trial court should have consider ed his claims, but instead relied on its mistaken belief that counsel would be filing a motion for a new trial, which was never filed.1

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- ¶ 32 The State responds that the trial court properly denied Pena 's motion without an inquiry because it had no obligation to investigate the allegations , which were patently without merit and could not support a claim of possible neglect of the case. The State asserts that Pena 's complaint that counsel did not call the lieutenant to testify was an unassailable matter of trial strategy, and the allegedly pr ejudicial remark made by counsel does not appear in the record. ¶ 33 Where defendant raises a pro se posttrial claim that trial counsel rendered ineffective assistance, the trial court should examine the factual basis of the claim to determine if it has an y merit. People v. Moore , 207 Ill. 2d 68, 77

- 78 (2003). The court can evaluate defendant's pro se claim by either discussing the allegations with defendant and asking for more specific details, questioning trial counsel regarding the facts and circumstance s surrounding defendant's allegations, or relying on its own knowledge of counsel's performance at trial and determining whether the allegations are facially insufficient. Id . at 78

- 79. If the court finds that the claims reveal possible neglect of the case , then it should appoint new counsel to represent defendant at a hearing on his pro se motion. Id . at 78. But , if the trial court finds defendant's allegations to be without merit or to pertain only to matters of trial strategy, new counsel should not be appointed and the court may deny the pro se motion without further inquiry

. Id

. ; People v. Ward , 371 Ill. App. 3d 382, 433 (2007). Generally, determining which witnesses to call involves a matter of trial strategy that is unassailable and cannot form the basis of a claim that counsel rendered ineffective assistance. Ward , 371 Ill. App. 3d at 433 ( citing People v. Enis , 194 Ill. 2d 361, 378 (2000) )

. On review, the appellate court determine s whether the trial court's inquiry into defendant's pro se claim was adequate. Id

. ¶ 34 W e find no error in the trial court's decision to dismiss Pena 's pro se motion without conducting any further inquiry. Pena alleged th at counsel should have called Lieutenant1

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- Navarette as a witness to show that the video would have impeached his testimony from the 2009 jury trial. But , this evidence would have been irrelevant

— N avarette only testified as a witness in the first case , and thus, counsel had no reason to call the lieutenant as a witness to impeach testimony absent from the second trial

. See United States v. Finley , 708 F. Supp. 906, 909 (N.D. Ill. 1989) ( " [A] s a general matter of relevance, a person who does not testify at trial and who is not the source o f statements admitted for their truth is not subject to impeachment

. " )

. ¶ 35 In United States v. McClain , 934 F.2d 822, 832 (7th Cir. 1991), the government decided not to call an informant as a witness. During the trial, tapes were played which contained statements made by the informant. Id

. On appeal, the defendant argued that he was denied his opportunity to impeach the informant, thus violating his right to confront the witnesses against him. Id

. The Seventh Circuit found that the Federal Rules of Evide nce allow for impeachment of a “witness,” but that the informant was not a witness in the case. Defendant claimed that he would have called the informant as a witness

. Id. at 832

- 3 3. T he Seventh Circuit found no merit in th is argument, stating that “the tr ial judge correctly decided that questioning Burnett solely to impeach him would be irrelevant.” Id. at 832. Similarly, Navarette testified during the first trial, but not the second trial

. Pena argued in his pro se motion that counsel should have called
N avarette as a witness during the second trial for the sole purpose of showing that the video impeached his testimony from the first trial. But , Navarette’s testimony from the first trial was not at issue during the second trial. Accordingly, this evidence is irrelevant

. ¶ 3 6 As to Pena 's second contention, the record contains nothing to indicate that counsel ever made a statement s uch as "[m]y client guarantees that if you let him go this time nothing like this will ever happen again

. " Pena assert s in his motion that after making this statement, counsel said "I retract that." If th is occurred, the statement, including the retraction, would have been reflected1

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- in the record

. It is not. In assessing Pena 's allegations, the trial court may rely on its own knowledge to determine the factual sufficiency of the allegations , and the trial court expressly stated "I find the pro se motion is without merit and is respectfully denied." T he trial court , thus , evaluated Pena 's claims of ineffective assistance and found them wanting , which obviated further inquiry. Moore , 207 Ill. 2d at 78. W e find no error in th e ruling

. ¶ 37 CONCLUSION ¶ 3 8 W e affirm the judgment of the circuit court. ¶ 39 Affirmed.