                                  Illinois Official Reports

                                          Appellate Court



                              People v. Pena, 2014 IL App (1st) 120586



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      DANIEL PENA, Defendant-Appellant.


District & No.               First District, Third Division
                             Docket No. 1-12-0586


Filed                        October 15, 2014


Held                         Defendant’s conviction for aggravated battery of a peace officer
(Note: This syllabus         arising from an incident in which he spit on a correctional officer after
constitutes no part of the   being placed in a holding cell was upheld over his contentions that he
opinion of the court but     was not proved guilty beyond a reasonable doubt, that he was denied
has been prepared by the     his right to represent himself, and that the trial court failed to make a
Reporter of Decisions        proper inquiry with respect to his claim of ineffective assistance of
for the convenience of       counsel, since a videotape of the incident corroborated the officer’s
the reader.)                 testimony that defendant spit on him after being placed in the cell and
                             there was no basis for disturbing any of the trial court’s findings, the
                             record did not show that defendant ever made an articulate and
                             unmistakable demand to proceed pro se, and the trial court properly
                             relied on its own knowledge in rejecting defendant’s allegations with
                             respect to the assistance provided by his counsel.




Decision Under               Appeal from the Circuit Court of Cook County, No. 07-CR-20877; the
Review                       Hon. James B. Linn, Judge, presiding.



Judgment                     Affirmed.
     Counsel on                Michael J. Pelletier and Kathleen Weck, both of State Appellate
     Appeal                    Defender’s Office, of Chicago, for appellant.

                               Anita M. Alvarez, State’s Attorney, of Chicago (Ahmed M. Baset,
                               Assistant State’s Attorney, of counsel), for the People.




     Panel                     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, defendant Daniel Pena appeals his conviction for aggravated battery of
       a peace officer, contending 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
       and 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 on his criminal history. We affirm.
¶2         With regard to Pena’s contention that the State fell short of proving guilt beyond a
       reasonable doubt, the trial court as the trier of fact occupies a superior position to assess
       Officer Lee’s credibility and resolve any conflicts in the evidence, and it had the benefit of the
       videotape, even though Lee’s testimony conflicted somewhat from the first trial. In addition,
       the trial court did not deny Pena his right to self-representation; no error occurred and the plain
       error doctrine does not apply. Finally, we find the trial court acted properly when it dismissed,
       without further inquiry, Pena’s pro se posttrial motion of ineffective assistance of counsel.

¶3                                          BACKGROUND
¶4         Following 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 that trial, only to be located by the State after the trial concluded. While 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)) claiming 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. 1-09-3276 (2010) (dispositional order). On remand, the parties agreed that the videotape
       was relevant, and the circuit court granted Pena a new trial. (Following that ruling, this court



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     dismissed defendant’s initial direct appeal. People v. Pena, No. 1-09-0932 (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, stating 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 his
     trial counsel disagreed with everything 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 raised the issue of self-representation. Three months later, Pena
     hired 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 available” 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 Officer 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 the cell, and he did not physically touch Pena or
     assist with Pena’s movement to the cell. When Pena refused 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 Officer Lee, which landed on 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 testified that there was no reason why blood would have landed on
     his 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 video depicted these 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 speak with him about an incident in the jail Kern was


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       investigating. Pena asked to speak with him alone, away from the other detainees. Once the
       two were alone, Pena spit 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 taken to Cermak
       Hospital and had three teeth replaced.
¶ 11        Pena testified that during an argument, Officer Williams punched him twice, knocking out
       two of his teeth and loosening a third. Williams pulled Pena down to the ground, and Officer
       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 Officer Williams, not Lee, and also denied threatening and spitting at Officer
       Kern six months earlier. In rebuttal, the State submitted a copy of Pena’s prior conviction for
       child abduction as impeachment.
¶ 12        In announcing its decision, the trial court stated that the videotape allowed it to hear and
       see what happened that day, and hear Officer 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 on 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 testimony 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 again’ (or close to
       this remark).” Although Pena acknowledged that 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 meritless 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
                                     Aggravated Battery of Peace Officer
¶ 16       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 differed significantly from the first trial, where he stated that 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 spit in Officer 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 Officer 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


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       argues that the audio established that Pena spit at that precise moment, after which Officer 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 accidental.
¶ 18       When a defendant claims 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, the trial court, sitting as the trier of fact, determines the
       credibility of the witnesses, weighs the evidence, resolves conflicts in the evidence, and draws
       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)), nor will we reverse simply because defendant claims that
       a witness was not credible or that the evidence was contradictory (Siguenza-Brito, 235 Ill. 2d at
       228).
¶ 19       To prove Pena guilty of aggravated battery of a peace officer, the State must show Pena
       intentionally or knowingly, 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 shows that as Officer Lee and
       a group of correctional officers escorted Pena to a holding cell inside the jail, Pena was irate
       and yelling obscenities at the officers and bleeding from the mouth. When Pena refused to
       enter the holding cell, officers carried him inside and placed him on 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 officer 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 corroborates Officer Lee’s testimony. The video shows, in pertinent part, that as
       the officers leave the cell, Pena repeatedly screams threats, obscenities and racial slurs, then
       stands up and walks a few steps forward. As 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 spitting, Officer Lee spontaneously and distinctly states, “he spit on me, man.”
¶ 22       Contrary to Pena’s claims 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
       from 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 of Pena’s combative conduct toward the officers, and his threat to kill the officer’s
       “bitch ass.” Although Officer Lee’s testimony conflicted in some respects 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 proven

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       guilty of the charged offense beyond a reasonable doubt. We find no basis for disturbing 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
¶ 24       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
       based on his lack of legal knowledge rather than determining if his waiver of counsel was
       voluntary and intelligent.
¶ 25       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 review in his opening brief. Alternatively, the State
       argues that plain error does not apply because no error occurred–Pena did not make a clear and
       unambiguous waiver of counsel, but instead, was requesting new counsel. In reply, Pena
       argues that the second prong of the plain error doctrine applies because the improper denial of
       self-representation constitutes structural error.
¶ 26       The United States Supreme Court has expressly held that the denial of self-representation
       at trial is a structural error that renders 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
       preserve 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)).
¶ 27       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 right 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 Burton, 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.
¶ 28       Our 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 initially denied that request and, in the colloquy that ensued,
       told Pena that if he fired his counsel, he would have to represent himself. It was thus the trial
       court, not Pena, who initiated the idea of Pena representing himself, and after this 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 it 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 not understand why his trial counsel disagreed with everything his

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       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.”
¶ 29        Notwithstanding that comment, the entire exchange shows that Pena did not make 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 the 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.
       Within 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 the trial court failed to conduct an inquiry into his pro se posttrial
       claim of ineffective assistance of counsel, but instead denied the motion sua sponte when
       neither he 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 considered his claims, but instead relied on its mistaken belief that counsel
       would be filing a motion for a new trial, which was never filed.
¶ 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 prejudicial 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
       any 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 circumstances 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.


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       Enis, 194 Ill. 2d 361, 378 (2000)). On review, the appellate court determines whether the trial
       court’s inquiry into defendant’s pro se claim was adequate. Id.
¶ 34        We find no error in the trial court’s decision to dismiss Pena’s pro se motion without
       conducting any further inquiry. Pena alleged that counsel should have called Lieutenant
       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–Navarette 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 of 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 Evidence 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 832-33. The Seventh Circuit found no
       merit in this argument, stating that “the trial 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 Navarette 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.
¶ 36        As to Pena’s second contention, the record contains nothing to indicate that counsel ever
       made a statement such as “[m]y client guarantees that if you let him go this time nothing like
       this will ever happen again.” Pena asserts in his motion that after making this statement,
       counsel said “I retract that.” If this occurred, the statement, including the retraction, would
       have been reflected 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.”
       The trial court, thus, evaluated Pena’s claims of ineffective assistance and found them wanting,
       which obviated further inquiry. Moore, 207 Ill. 2d at 78. We find no error in the ruling.

¶ 37                                      CONCLUSION
¶ 38      We affirm the judgment of the circuit court.

¶ 39      Affirmed.




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