                                     2014 IL App (1st) 120586
                                          No. 1-12-0586
                                   Opinion filed October 15, 2014
                                                                  Third Division
______________________________________________________________________________

                                    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,                                    )     Honorable
                                                )     James B. Linn,
                  Defendant-Appellant.          )     Judge, presiding.
______________________________________________________________________________

        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 had the benefit of the videotape,

even though Lee's testimony conflicted somewhat from the first trial. In addition, the trial court
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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, 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 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

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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 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 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 testified that there was no reason why blood would have landed on his

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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 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 investigating.

Pena asked to speak with him alone, away from the other detainees. Once the two were alone,

Pena spat 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

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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

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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 spat 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 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)), or

simply because defendant claims that a witness was not credible or that the evidence was

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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 refuses 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

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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 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 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

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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. Aug. 27, 1999)).

¶ 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

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understand why his trial counsel 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."

¶ 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.

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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 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. 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 Lt. Navarette as a

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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 832-3. 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

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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." 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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