                             2018 IL App (2d) 150650 

                                  No. 2-15-0650

                            Opinion filed March 6, 2018 

______________________________________________________________________________

                                              IN THE


                              APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of McHenry County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 14-CF-939
                                       )
SCOTT PETERS,                          ) Honorable
                                       ) Sharon L. Prather,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
       Justices Jorgensen and Spence concurred in the judgment and opinion.

                                            OPINION


¶1     Following a jury trial, the defendant, Scott Peters, was convicted of the attempted murder


(720 ILCS 5/9-1(a)(1), (b)(1), 8-4(a) (West 2014)) of three deputy sheriffs and was sentenced to


a total of 135 years’ imprisonment. On appeal, the defendant argues that (1) he was not proved


guilty beyond a reasonable doubt of trying to kill one of the deputies, (2) the trial court did not


conduct a proper hearing on his motion under People v. Krankel, 102 Ill. 2d 181, 187-89 (1984),


(3) the trial court did not properly question the jury pursuant to People v. Zehr, 103 Ill. 2d 472

(1984), (4) he was denied his constitutional right to be present at all critical stages of the trial,

(5) he was deprived of a fair trial by the State’s prejudicial closing arguments, and (6) he was

deprived of the effective assistance of counsel. We affirm.
2018 IL App (2d) 150650


¶2                                    I. BACKGROUND

¶3      Early in the morning of October 16, 2014, McHenry County Sheriff’s Deputies Dwight

Maness, Khalia Satkiewicz, and Eric Luna went to the defendant’s residence in Holiday Hills to

conduct a well-being check on the defendant’s wife. The deputies arrived in separate vehicles

and parked on Hyde Park Avenue, about 300 feet from the residence, which had a fence on the

east side.

¶4      Deputies Maness and Satkiewicz went through a driveway entrance to the front door of

the residence, while Deputy Luna went around to the east side and rear of the house. There was

a minivan and a pickup truck in the driveway. The house had glass block windows. Deputy

Luna saw lights on and movement inside but could not see people. Deputies Maness and

Satkiewicz noticed surveillance cameras on the garage and near the front door. The cameras

moved when the deputies moved.

¶5      Deputies Maness and Satkiewicz knocked loudly on the front door but did not receive

any answer. From his position, Deputy Luna could hear them knocking and what they were

saying. They knocked again and still did not receive an answer, but Deputy Satkiewicz noticed a

blind in the window move. After the deputies knocked a third time, the defendant asked, “Who

is it?” The deputies announced that they were McHenry County Sheriff’s deputies, and the

defendant replied, “What do you want?” When the deputies told the defendant that they were

there to check on his wife, he told them that there was no problem and that they needed to leave.

The deputies explained that they could not leave until they spoke with his wife. The defendant

again told them that they needed to leave and that they could not come into the house. The

deputies responded that they would not leave until they spoke with his wife. That statement was




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met with silence for about 10 to 15 seconds. The defendant then told the deputies, “Come on

in.”

¶6     Deputy Maness asked the defendant if he was going to open the door. The defendant

again told the deputies to “come on in.” Deputy Maness was concerned that he was walking into

an ambush, so he again told the defendant that he needed to come outside. In response, the

defendant then said, “We’re going to do this, let’s do this. Airborne.” When Deputy Maness

heard “Airborne,” he started to take cover and pushed Deputy Satkiewicz out of the way as

shooting erupted from inside the house through the door. Deputy Luna heard rapid gunfire and

ran to the front of the garage, taking cover between the minivan and the garage door.

¶7     Deputy Maness was shot in the lower part of his back. He went around a vehicle and

passed Deputy Luna, who was at that vehicle. Deputy Luna, who could see a silhouette of what

looked like a man with a rifle to the west side of the garage, told Deputy Maness to take cover,

saw Deputy Satkiewicz with a rip in her pants, and then started shooting. Deputy Maness called

command to report that shots had been fired. He also requested two ambulances because Deputy

Satkiewicz told him that she had been hit. Deputy Luna saw a muzzle flash from the rifle that

the defendant pointed down the driveway toward Deputy Satkiewicz. From behind the van,

Deputy Luna fired eight shots at the defendant.

¶8     As Deputy Maness was trying to return to his squad car, he was shot a second time, in the

leg. The defendant called out, “I’m a U.S. Army paratrooper, I hope you’re ready to die ’cause I

am.” Deputy Maness crawled to a ditch and asked Deputy Satkiewicz for a tourniquet. Police

officer Hueramo from the Island Lake Police Department had responded to the scene, and he

dragged Deputy Maness about 200 feet to an opening in a fence.




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¶9     When Deputy Satkiewicz had turned to run from the front door, she could hear shots

coming through the door and glass breaking. After being shot in the leg as she neared the fence

by the defendant’s house, Deputy Satkiewicz fell but then got up to run. As she came to a

roadway, she felt a bullet go by her head. She saw Deputy Maness running along the fence and

saw him get shot in the leg. By the time she got to Deputy Maness’s car, the firing had stopped.

Deputy Satkiewicz said that she did not feel getting shot but that pieces of her leg were splattered

onto her vest. She heard Deputy Maness calling for her to get a tourniquet and knew that he

needed help. Officer Hueramo came and assisted Deputy Maness.

¶ 10   After the shooting stopped, the police set up a perimeter around the defendant’s house.

The defendant was arrested later that evening as he was walking toward Crystal Lake near Smith

Road and Route 176. The police then questioned him at the McHenry County Government

Center. The defendant stated that he believed that the people he shot were intruders. He stopped

shooting once he realized that they were police. He fled the scene because he was scared that he

would be killed.

¶ 11   On November 6, 2014, the defendant was charged with six counts of attempted murder

(720 ILCS 5/9-1(a)(1), (b)(1), 8-4(a) (West 2014)) for shooting at Deputies Maness, Satkiewicz,

and Luna. He was also charged with two counts of aggravated battery (id. § 12-3.05(e)(2)(i))

and five counts of aggravated discharge of a firearm (id. § 24-1.2(a)(3)).

¶ 12   On April 2, 2015, the State filed an amended indictment. As pertinent to this appeal, the

State replaced one count that alleged that the defendant had attempted to murder Deputy

Satkiewicz “by shooting and causing severe bodily harm” with two counts that alleged that the

defendant had attempted to murder Deputy Satkiewicz “by shooting her in the leg causing severe

bodily harm” (count III) and “by shooting her in the chest causing severe bodily harm” (count



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IV). On April 22, 2015, the State filed a second amended indictment in which count IV was

amended to remove the language regarding causation of severe bodily harm.

¶ 13   Between April 27 and April 30, 2015, the trial court conducted a jury trial on the charges

against the defendant. At the close of the trial, the jury found the defendant guilty of all charges.

The trial court subsequently denied defense counsel’s motion for a new trial as well as the

defendant’s pro se motion for a new trial.

¶ 14   On June 25, 2015, following a sentencing hearing, the trial court sentenced the defendant

on five counts of attempted murder. The trial court sentenced the defendant to two concurrent

terms of 55 years’ imprisonment for his attempted murder of Deputy Maness, two concurrent

terms of 55 years’ imprisonment for his attempted murder of Deputy Satkiewicz, and 25 years’

imprisonment for his attempted murder of Deputy Luna. The trial court otherwise ordered the

sentences to run consecutively. Thus, the defendant was sentenced to a total of 135 years’

imprisonment. The trial court found that it could not enter sentences on any of the other charges

under one-act, one-crime principles. Following the trial court’s ruling, the defendant filed a

timely notice of appeal.

¶ 15                                       II. ANALYSIS

¶ 16                       A. Sufficiency of the Evidence as to Deputy Luna

¶ 17   The defendant’s first contention is that he was not proved guilty beyond a reasonable

doubt of the attempted murder of Deputy Luna, because the evidence failed to establish that the

defendant either had the specific intent to kill Deputy Luna or knowingly fired a weapon in

Deputy Luna’s direction. The defendant insists that the evidence showed that shots were fired

only in the direction of Deputies Satkiewicz and Maness and that Deputy Luna had been on the

side of the house when the shooting began. After the shooting began, Deputy Luna came toward



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the front of the house and took cover behind vehicles parked in the driveway. As Deputy Luna

was not injured and there was no evidence that any shots were fired in his direction, the

defendant insists, the evidence failed to establish that he attempted to murder Deputy Luna.

¶ 18   It is not the province of this court to retry the defendant. People v. Collins, 106 Ill. 2d

237, 261 (1985). The relevant question is whether, “ ‘after viewing the evidence in the light

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.’ ” (Emphasis in original.) Id. (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “The sufficiency of the evidence and the relative

weight and credibility to be given the testimony of the witnesses are considerations within the

exclusive jurisdiction of the fact finder.” People v. Atherton, 406 Ill. App. 3d 598, 608 (2010).

The evaluation of the testimony and the resolution of any conflicts or inconsistencies that appear

are also wholly within the province of the finder of fact.         Collins, 106 Ill. 2d at 261-62.

Nonetheless, where the record leaves a reasonable doubt, a reviewing court must reverse the

judgment. People v. Smith, 185 Ill. 2d 532, 541 (1999). A court of review has a duty to

carefully review the evidence and to reverse the conviction of the defendant when the evidence is

so unsatisfactory as to raise a serious doubt of the defendant’s guilt. People v. Estes, 127 Ill.

App. 3d 642, 651 (1984).

¶ 19   To support a conviction of attempted murder, the State must establish beyond a

reasonable doubt that (1) the defendant performed an act constituting a “substantial step” toward

the commission of murder (720 ILCS 5/8-4(a) (West 2014)) and (2) the defendant possessed the

specific intent to kill the victim (id. § 9-1(a)(1)). People v. Green, 339 Ill. App. 3d 443, 451

(2003). Because intent is difficult to establish with direct evidence, the specific intent to kill may

be, and normally is, inferred from the surrounding circumstances, such as (1) the character of the



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attack, (2) the use of a deadly weapon, and (3) other matters from which an intent to kill may be

inferred. Id. “ ‘Such intent may be inferred when it has been demonstrated that the defendant

voluntarily and willingly committed an act, the natural tendency of which is to destroy another’s

life.’ ” Id. (quoting People v. Winters, 151 Ill. App. 3d 402, 405 (1986)). While the act of firing

a gun, without more, is not sufficient to prove the specific intent to kill, circumstances

demonstrating that the defendant acted with malice or a complete disregard for human life when

he discharged a firearm at another person support the conclusion that the defendant possessed the

specific intent to kill. People v. Petermon, 2014 IL App (1st) 113536, ¶ 39. The fact that the

defendant failed to strike anyone “could support an inference that he lacked the intent to kill.

However, that fact also supports the alternative inference that [the defendant] was simply

unskilled and missed his targets. The decision as to which of competing inferences to draw from

the evidence is the responsibility of the trier of fact.” Green, 339 Ill. App. 3d at 451-52.

¶ 20   Based on the standard set forth in Green, we believe that the State presented sufficient

evidence for a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt of

the attempted first-degree murder of Deputy Luna.          The defendant clearly intended to kill

Deputies Maness and Satkiewicz when he used a rifle to shoot them though his front door. The

defendant’s words and actions also demonstrated that his intent to kill was not limited to

Deputies Maness and Satkiewicz but also included Deputy Luna.                Deputies Maness and

Satkiewicz did not fire any shots at the defendant. Deputy Luna, however, shot at him eight

times. The jury could therefore reasonably infer that the defendant’s comment, “I hope you’re

ready to die ’cause I am,” which was made after several shots had been fired at the defendant,

was directed toward Deputy Luna. The evidence also showed that the defendant fired numerous




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times down his driveway, near where Luna was positioned. Although all of the defendant’s

shots missed Deputy Luna, poor marksmanship is not a defense to attempted murder. Id. at 452.

¶ 21   The defendant insists that, based on his military training, he was a good marksman and

could have hit Deputy Luna had he wanted to. Relying on People v. Jones, 184 Ill. App. 3d 412,

430 (1989), People v. Thomas, 127 Ill. App. 2d 444, 456 (1970), and People v. Garrett, 216 Ill.

App. 3d 348, 354 (1991), the defendant argues that, because he had the opportunity to kill

Deputy Luna but did not, he demonstrated that he lacked the requisite intent to commit attempted

first-degree murder. We disagree. In Jones, Thomas, and Garrett, the defendant had a clear

opportunity to kill the victim, yet chose not to do so. Jones, 184 Ill. App. 3d at 430 (reviewing

court reversed attempted murder conviction where defendant hit victim in the head with the gun

and kicked him in the head, but did not use the gun to murder him); Thomas, 127 Ill. App. 2d at

455-56 (conviction of attempted murder reversed where defendant had opportunity to kill victim

but did not); Garrett, 216 Ill. App. 3d at 354 (reversing conviction of attempted murder where

defendant, although armed, did not use weapon on victim). Again, whether the defendant

intended to strike Deputy Luna was within the purview of the jury. Green, 339 Ill. App. 3d at

451-52. We note that Deputy Luna did not make himself an easy target to hit as he was moving

around and hiding behind vehicles. The fact that Deputy Luna was not shot by the defendant did

not establish that the defendant did not try to shoot him. Id. at 452.

¶ 22   We also find unpersuasive the defendant’s reliance on People v. Wagner, 189 Ill. App. 3d

1041 (1989), overruled on other grounds by People v. Mitchell, 241 Ill. App. 3d 1094 (1993),

and People v. Trinkle, 68 Ill. 2d 198 (1977). In Wagner, the defendant shot a gas station

attendant during a robbery. Wagner, 189 Ill. App. 3d at 1043. Although the trial court found

that the defendant did not have the specific intent to kill, it nonetheless convicted him of



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attempted first-degree murder. The reviewing court reversed the defendant’s conviction, finding

that, absent the intent to kill, he could not be found guilty of attempted murder. Id. at 1046. In

Trinkle, the defendant shot at a tavern from the outside after he was refused service, and the

bullet struck a patron inside. Trinkle, 68 Ill. 2d at 199. The Illinois Supreme Court concluded

that the defendant could not be found guilty of attempted murder, because he did not act with the

specific intent to kill when he fired at the building. See id. at 202-03. Here, unlike in Wagner

and Trinkle, there was evidence that the defendant did act with the specific intent to kill. The

defendant told Deputy Luna that he hoped he was ready to die and fired shots in his direction.

That was enough to establish that he acted with the requisite intent. See People v. Johnson, 331

Ill. App. 3d 239, 251 (2002) (“[e]vidence that a defendant discharged a firearm in the direction

of another individual, either with malice or total disregard for human life, is sufficient to support

a conviction for attempted first degree murder”); People v. Sowewimo, 276 Ill. App. 3d 330, 341

(1995) (firing even one shot at another person can be sufficient to demonstrate intent to kill for

attempted first-degree murder).

¶ 23                                    B. Krankel Inquiry

¶ 24   The defendant’s second contention on appeal is that the trial court did not follow the

proper procedures set forth in Krankel, 102 Ill. 2d at 187-89, when he filed a pro se motion

arguing that he had received the ineffective assistance of counsel. Relying on People v. Jolly,

2014 IL 117142, and People v. Fields, 2013 IL App (2d) 120945, the defendant argues that this

court must vacate the trial court’s ruling on his pro se motion and remand for further

proceedings.

¶ 25   After the defendant was found guilty by the jury, defense counsel filed a motion for a

new trial. The trial court denied that motion. The defendant then filed a pro se motion for a new



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trial. He reiterated much of defense counsel’s posttrial motion but added numerous allegations

of ineffective assistance of counsel as well as other errors not previously alleged by counsel.

¶ 26   On June 5, 2015, when the defendant’s pro se motion was first presented to the trial

court, the prosecutor stated:

               “Judge, it appears most of this was a cut and paste of what [defense counsel] filed.

       And so we—I am not going to waste the court’s time. We already addressed that. You

       already ruled upon that. And I ask that you stay consistent with your ruling.

               Judge, he then goes on to essentially make allegations against [defense counsel].

       And I think the court, as the trier of these proceedings, can make an independent

       assessment of their ability and the defense that they put on. I believe that he did receive

       adequate representation.

               There [sic] were matters of trial strategy.”

The prosecutor argued one particular claim made by the defendant, regarding the video of his

postarrest statement, but the trial court interjected, stating, “I don’t mean to cut you off or

interrupt you. I agree with you.”

¶ 27   On June 12, 2015, the trial court conducted a hearing on the defendant’s motion. The

State did not participate in the hearing. At the close of the hearing, the trial court denied the

defendant’s motion.

¶ 28   The purpose of a Krankel proceeding “is to facilitate the trial court’s full consideration of

a defendant’s pro se claims of ineffective assistance of trial counsel and thereby potentially limit

issues on appeal.” Jolly, 2014 IL 117142, ¶ 29. There are three ways in which the trial court

may conduct a preliminary Krankel hearing: (1) the court may ask defense counsel about the

defendant’s claims and allow counsel to “answer questions and explain the facts and



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circumstances surrounding” the claims, (2) the court may have a “brief discussion” with the

defendant about his claims, or (3) the court may base its evaluation “on its knowledge of defense

counsel’s performance at trial and the insufficiency of the defendant’s allegations on their face.”

People v. Buchanan, 2013 IL App (2d) 120447, ¶ 19. “[T]he State should never be permitted to

take an adversarial role against a pro se defendant at the preliminary Krankel inquiry.” Jolly,

2014 IL 117142, ¶ 38. Because a defendant is not appointed new counsel for the preliminary

Krankel inquiry, the State’s participation, if any, should be de minimis. Id. If the trial court

determines that the claims lack merit or pertain to trial strategy, the trial court may deny the

pro se motion. People v. Moore, 207 Ill. 2d 68, 77-78 (2003). However, if the allegations show

possible neglect of the case, new counsel should be appointed to assist in the motion. Id. at 78.

The manner in which the trial court conducted its Krankel inquiry is reviewed de novo. Fields,

2013 IL App (2d) 120945, ¶ 39.

¶ 29   In Jolly, the State conceded that the trial court erred in permitting the State’s adversarial

participation in the preliminary inquiry. Jolly, 2014 IL 117142, ¶ 27. Thus, the Jolly court

addressed whether the error was harmless beyond a reasonable doubt and concluded that it was

not. Id. ¶¶ 31, 40. During the preliminary inquiry in Jolly, the trial court “permitted the State to

question defendant and his trial counsel extensively in a manner contrary to defendant’s pro se

allegations of ineffective assistance of counsel and to solicit testimony from his trial counsel that

rebutted defendant’s allegations.” Id. ¶¶ 20-21, 40. In addition, the State “presented evidence

and argument contrary to defendant’s claims and emphasized the experience of defendant’s trial

counsel.” Id. ¶ 40. The supreme court therefore reversed the denial of the defendant’s posttrial

motion and remanded for a new preliminary Krankel hearing. Id. ¶ 48.




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¶ 30    In Fields, at the preliminary Krankel hearing, the trial court permitted the State to argue

against, or otherwise rebut, each of the defendant’s claims of ineffective assistance of counsel.

The State also argued in support of defense counsel’s explanations of his actions at the

defendant’s trial. Fields, 2013 IL App (2d) 120945, ¶¶ 22, 41. This court found that the State

should not be an active participant in a preliminary Krankel inquiry. Rather, we determined, the

State should be limited to a de minimis role in the preliminary Krankel inquiry, to limit the risk

that the inquiry would be transformed into an adversarial proceeding with both the State and

defense counsel opposing the defendant. Id. ¶ 40. After reviewing the record, we concluded:

        “Where the trial court, at various times, allowed both defense counsel and the State to

        assert that defendant’s claims warranted no further investigation, the hearing changed

        from one consistent with Krankel and its progeny to an adversarial hearing where

        defendant, without waiving his right to be represented, was forced, unrepresented, to

        argue the merits of his claims.” Id. ¶ 41.

Thus, we reversed the denial of the defendant’s motion and remanded for a new preliminary

inquiry before a different judge and without the State’s adversarial participation. Id. ¶ 42.

¶ 31    Here, unlike in Jolly and Fields, the State did not take an adversarial role in the Krankel

hearing that the trial court conducted. Rather, the State’s participation was limited to statements

made one week prior to the hearing, when it informed the trial court that it considered the

defendant’s complaints against his attorney to be on matters of trial strategy. The defendant

argues that this comment warrants a new hearing on his motion because the comment improperly

biased the trial court against him. We disagree. The State’s comment rose only to the level of

de minimis, which our supreme court has found to be permissible. See Jolly, 2014 IL 117142,

¶ 38.



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¶ 32                            C. Jury Questioning Pursuant to Zehr

¶ 33    The defendant’s third contention on appeal is that he was deprived of a fair trial before an

impartial jury when the trial court improperly phrased the final question it asked the jury under

Zehr. The defendant argues that the trial court’s improper phrasing caused the jurors to be

biased against him when he chose not to exercise his right to testify. The State responds that the

defendant has forfeited this issue because he did not raise it at trial.

¶ 34    To preserve a purported error for consideration by a reviewing court, a defendant must

object to the error at trial and raise the error in a posttrial motion. People v. Belknap, 2014 IL

117094, ¶ 66. Failure to do either results in forfeiture. There is, however, a well-established

exception to that principle. Illinois Supreme Court Rule 615(a) provides that insubstantial errors

“shall be disregarded” but that substantial or what have become known as plain errors “may be

noticed although they were not brought to the attention of the trial court.” Ill. S. Ct. R. 615(a)

(eff. Jan. 1, 1967). As the language of the rule indicates, a reviewing court may exercise

discretion and excuse a defendant’s procedural default. People v. Clark, 2016 IL 118845, ¶ 42.

Our supreme court has traditionally identified two instances when it is appropriate to do so:

“(1) when a clear or obvious error occurred and the evidence is so closely balanced that the error

alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of

the error, or (2) when a clear or obvious error occurred and that error is so serious that it affected

the fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless

of the closeness of the evidence.” (Internal quotation marks omitted.) People v. Sebby, 2017 IL

119445, ¶ 48.

¶ 35    The initial analytical step under either prong of the plain error doctrine is determining

whether there was a clear or obvious error at trial. Id. ¶ 49. Here, the parties dispute whether the



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trial court violated Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). That rule requires the

trial court to ask potential jurors whether they understand and accept the four Zehr principles.

See id. The Zehr principle at issue is that the defendant has the right not to testify. The trial

court conveyed this information to the jurors by questioning them whether they accepted that it

could not be held against the defendant if he “fails” to testify. The defendant insists that the trial

court’s use of the word “fails” had a negative connotation as it conveyed to the jury that the

defendant was not doing something that he should have been doing. The State counters that, in

context, the trial court’s use of that term was not inappropriate. The State also maintains that the

trial court’s question was sufficient as the court did not have to use any particular language to

convey the Zehr principles. See People v. Blankenship, 406 Ill. App. 3d 578, 583 (2010).

¶ 36   We agree with the State. In questioning the jury, the trial court explained that “every

defendant has a constitutional right not to testify and the jury may not draw any inference of guilt

if the defendant fails to testify.” In context, we believe, the trial court was informing the jury

that the defendant was exercising his constitutional right if he failed to testify. The trial court’s

phrasing of this question was not improper as it was consistent with Zehr.

¶ 37   However, even if we were to construe the trial court’s use of the term “fails” as error,

such an error does not rise to the level of plain error. Under the two-prong plain error analysis,

only the first prong—that the evidence was so closely balanced that the error alone severely

threatened to tip the scales of justice—can apply unless the defendant can demonstrate that the

trial court’s error caused the jury to be biased. Sebby, 2017 IL 119445, ¶ 52 (“A Rule 431(b)

violation is not cognizable under the second prong of the plain error doctrine, absent evidence

that the violation produced a biased jury.”).       Here, the defendant does nothing more than




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speculate that the trial court’s instruction might have biased the jury against him. Thus, the

second prong of the plain error analysis is not applicable.

¶ 38      As to the first prong of the plain error analysis, the defendant argues that the evidence in

this case was closely balanced. The defendant restates his first contention—that his intent to kill

Deputy Luna was not clear, because he did not even realize that Deputy Luna was on his

property. The defendant also argues that the evidence was closely balanced as to whether he

intended to shoot Deputy Satkiewicz in the chest, as the bullet that struck her there might have

ricocheted from one that hit her in the leg.

¶ 39      The evidence in this case was not closely balanced. The defendant clearly shot at all

three deputies, and his intent to kill them could be readily inferred from the circumstances. As

previously discussed, the defendant’s act of shooting toward Deputy Luna while stating that he

hoped he was “ready to die” clearly showed the defendant’s intent to kill Deputy Luna. Further,

in light of the defendant’s statement when he started shooting (“let’s do this”) and his repeated

shots at Deputies Maness and Satkiewicz as they were trying to flee, there was ample evidence

of his intent to kill them.       That the defendant might not have intended to strike Deputy

Satkiewicz in her chest in no way diminishes his potentially lethal conduct directed toward the

deputies.

¶ 40                         D. Constitutional Right to Be Present at Trial

¶ 41      The defendant’s fourth contention on appeal is that his constitutional right to be present at

all critical stages of the trial was violated when the trial court ordered him to be removed from

the courtroom on the second day of trial after he loudly complained about needing to see a

doctor.




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¶ 42   In response, the State argues that the defendant’s behavior throughout the proceedings

shows that he consistently faked or exaggerated his ailments. The State points to a January 2015

psychological evaluation, which indicated that the defendant had a tendency to complain and

magnify illness. The State also notes that, prior to trial, the defendant was using a wheelchair

even though he did not need to. The State therefore filed a motion for the defendant to be

required to walk into the courtroom rather than be brought in by a wheelchair.

¶ 43   At a hearing on that motion, Deputy McKenzie testified that he arrested the defendant on

October 16, 2014, the day of the shooting. The defendant was walking along the road and did

not appear to be limping. Dr. Kim, who provided care for the defendant at the McHenry County

jail, testified that he had examined the defendant several times, including after the defendant had

fallen in the shower and complained of knee pain. Dr. Kim took X-rays, which revealed no acute

injury. In examining the defendant, he found nothing that would limit the defendant’s mobility

to the extent that he should be in a wheelchair full-time. Dr. Kim told the defendant many times

that, if he continued to use a wheelchair, his leg muscles would atrophy and that would make it

more likely that he would need a wheelchair in the future. At the conclusion of the hearing, the

trial court ordered that the defendant be given a cane or walker for the purposes of entering and

leaving the courtroom.

¶ 44   On the morning of April 29, 2015, the day at issue, the defendant was found lying on the

floor of his jail cell when officers arrived to get him dressed in street clothes and take him to

court for that day’s trial proceedings. The defendant was screaming about pain, and he resisted

efforts by the officers to get him into a wheelchair and get him changed for court. When officers

were unable to get him to settle down or get him dressed, they called the jail nurse. The

defendant, accompanied by a couple of the officers and the nurse, was later wheeled into the



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courtroom outside the presence of the jury. The trial court then conducted a hearing to determine

whether the defendant was unable to attend the trial due to a medical problem.

¶ 45   Nurse McKay stated that she was a registered nurse with the jail and that she had

examined the defendant that morning. She had received a note that the defendant was acting ill.

She examined the defendant’s abdomen and found no medical problems, other than a hernia,

which the defendant had had for some time. She believed that he had been trying to force

himself to vomit, which might have made his muscles tender. She examined the garbage can in

his cell and found no evidence that he had vomited. She found no medical evidence that would

explain the defendant’s behavior that morning.

¶ 46   After hearing McKay’s testimony, defense counsel stated that he believed that the

defendant was feigning illness and that he was ready to proceed with trial. The trial court then

stated that it believed that the defendant was faking an illness and that his behavior constituted a

refusal to participate that would waive his constitutional right to be present. While the trial court

was making its comments, the defendant interrupted it eight times, arguing that he needed to see

a doctor. The defendant was removed from the courtroom.

¶ 47   Eight witnesses then testified that morning in the defendant’s absence. After the lunch

recess, the State informed the trial court that there were two videos from the jail that morning

that showed the defendant “feigning” illness. Portions of the videos were then played and

narrated by the prosecutor. After viewing those videos, the trial court reiterated its finding that

the defendant’s behavior was “absolutely totally unacceptable [and] was in no way attributable to

any illness.” The trial court then found that, as the defendant was now “calm and collected,” the

trial would proceed with him present.




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¶ 48   As the defendant acknowledges, he did not raise this issue at trial or in a posttrial motion.

Thus, the defendant is not entitled to any relief unless we find that the trial court’s decision to

continue the trial in his absence constituted plain error. See Belknap, 2014 IL 117094, ¶ 66.

¶ 49   A defendant has a fundamental right to be present during the testimony of witnesses

against him, which implicates a defendant’s sixth amendment confrontation rights. People v.

Escalante, 256 Ill. App. 3d 239, 245 (1994). A defendant can, however, waive his right to be

present by being voluntarily absent.       See People v. Smith, 188 Ill. 2d 335, 341 (1999).

Furthermore, a defendant can lose his right to be present if, after he has been warned by the

judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on

conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his

trial cannot be carried on with him in the courtroom. Illinois v. Allen, 397 U.S. 337, 343 (1970).

A trial court’s decision to continue the trial in the defendant’s absence will not be disturbed

absent an abuse of discretion. Id. (“[T]rial judges confronted with disruptive, contumacious,

stubbornly defiant defendants must be given sufficient discretion to meet the circumstances of

each case.”); see also People v. Justice, 349 Ill. App. 3d 981, 988 (2004) (trial court’s decision to

accept a defendant’s waiver of his right to be present is reviewed under the abuse-of-discretion

standard).

¶ 50   Here, we do not believe that the trial court abused its discretion when it continued the

trial in the defendant’s absence. Although the defendant insisted that he was in too much pain to

attend his trial, McKay contradicted his protests, stating that she had examined the defendant and

found nothing wrong with him other than a preexisting hernia condition.             That condition,

however, would not explain his laments of pain. As such, she essentially concluded that the

defendant was exaggerating any pain he was in. Such a conclusion would be consistent with the



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defendant’s psychological evaluation that indicated a tendency to exaggerate his level of pain.

Such a conclusion would also be consistent with Dr. Kim’s testimony from an earlier hearing

that there was no medical support for the defendant’s claim that he needed to use a wheelchair to

attend the court proceedings. Based on all of this evidence, the trial court did not abuse its

discretion in determining that the defendant was physically able to attend the trial and that his

insistence to the contrary reflected his voluntary decision not to be there. Accordingly, we find

no error, much less any plain error.

¶ 51   The defendant insists that we need not defer to the trial court’s credibility determination

regarding McKay’s testimony, because this court can review the DVD of the morning in

question that shows the defendant’s protruding hernia and reflects how much pain he was in. We

reject this argument for two reasons. First, we review the trial court’s decision based on what the

trial court had before it at the time. See Palmros v. Barcelona, 284 Ill. App. 3d 642, 645 (1996)

(reviewing court will not consider evidence not before the trial court). The trial court did not

have the DVD at that time. Because the trial court did not have access to that DVD, that

recording cannot now be used to find that the trial court abused its discretion in determining that

the defendant had waived his right to be present.

¶ 52   Second, even if we were to engage in such an analysis, we would not disturb the trial

court’s decision. The DVD does not conclusively establish how much pain the defendant was in.

To rely exclusively on the DVD would require this court to overlook McKay’s testimony as well

as the other evidence that the defendant had a propensity for feigning illness and exaggerating

his pain. That we decline to do.

¶ 53   We also note that the defendant claims that his attorney had no right to waive the

defendant’s presence at trial. Although that is true (People v. Mallett, 30 Ill. 2d 136, 142



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(1964)), that principle is not relevant to the case at bar. Here, it was the defendant’s actions

alone—not his attorney’s—that caused him to be absent from his trial.

¶ 54                               E. Prosecutorial Comments

¶ 55    The defendant’s fifth contention on appeal is that he was deprived of a fair trial when the

State made improper statements during closing argument.

¶ 56    At the close of the evidence, the prosecutor argued: “I think everybody in this courtroom

knows how I feel, but now it’s your turn.” He then described the defendant as “John Wayne over

here draped in the American flag” and told the jurors that Deputy Maness gave his “full measure

of devotion to you *** [in the] blood he spilled in the service of the line of duty.” He showed

the jurors Deputy Satkiewicz’s vest, telling the jurors that she was shot in the chest through the

house door. Referring to the defendant’s statement to the police that he thought that he was

shooting at intruders, the prosecutor called the defendant a “lying liar” and argued that the

defendant was “lying through his teeth. He’s minimizing, he’s fabricating, he’s fibbing. He’s a

lying liar. That’s what he is. Don’t believe a word he says.” He argued that the defendant shot

in Deputy Luna’s direction, saying, “That’s not that big of a driveway, folks. *** He’s right in

the line of fire.”

¶ 57    In his closing argument, defense counsel concluded his remarks by saying:

                “I’m going to ask you to carefully review all of this. This is a lot. I understand

        this. But carefully review this. Examine all the photographs, all of these photographs,

        everything. *** Look at all the physical evidence that you’re provided right now before

        you come to your conclusion. Listen again to testimony. Go through that video again

        that you saw.




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               And after you received the jury instructions from the judge and the judge asks you

       to go and deliberate, I ask that you hold the prosecution to their burden. Hold them to it

       and return a verdict of not guilty.”

¶ 58   In rebuttal, the prosecutor began his comments by stating:

               “Just because they tell you something is significant, because they tell you to comb

       through this evidence over and over again. You don’t have to if you don’t want to, ladies

       and gentlemen.

               Ladies and gentlemen, this one is not even close. The wealth of evidence, the

       mountains of evidence we’ve presented points only one way; that’s guilty.”

The prosecutor added, “we didn’t select 14 dummies.” He told the jurors that the defendant shot

Deputy Satkiewicz in the chest, saying “you saw the vest,” and he argued that the defendant

“kept tracking” the deputies.

¶ 59   In People v. Wheeler, 226 Ill. 2d 92, 123 (2007), our supreme court stated:

               “Prosecutors are afforded wide latitude in closing argument.          [Citation.]   In

       reviewing comments made at closing arguments, this court asks whether or not the

       comments engender substantial prejudice against a defendant such that it is impossible to

       say whether or not a verdict of guilt resulted from them. [Citation.] Misconduct in

       closing argument is substantial and warrants reversal and a new trial if the improper

       remarks constituted a material factor in a defendant’s conviction. [Citation.] If the jury

       could have reached a contrary verdict had the improper remarks not been made, or the

       reviewing court cannot say that the prosecutor’s improper remarks did not contribute to

       the defendant’s conviction, a new trial should be granted. [Citation.]”




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As the defendant did not object to any of the State’s comments at trial or specifically complain

about any of them in his posttrial motion, we consider only whether those comments constituted

plain error. See People v. Johnson, 220 Ill. App. 3d 550, 560-61 (1991).

¶ 60      We believe that two of the prosecutor’s comments that the defendant complains about

were improper. First, the prosecutor’s comment, “I think everybody in this courtroom knows

how I feel,” reflects a personal opinion that our courts have repeatedly denounced as improper.

See People v. Emerson, 122 Ill. 2d 411, 434 (1987). Second, the prosecutor’s statement that

Deputy Maness “spilled blood” in the line of duty was improper as it appealed to the jury’s

sympathy for the victim, particularly based on his status as a police officer. See People v.

Rebecca, 2012 IL App (2d) 091259, ¶ 83 (remark improper where sole purpose was to evoke

sympathy for victim). Nonetheless, although we consider the above remarks intemperate and

improper, the record indicates that the jury was instructed to consider only the evidence at trial

and to disregard any statements made in closing argument that were not based on the evidence.

In view of the entire record and the overwhelming evidence of defendant’s guilt, we cannot say

that the two improper comments either constituted a material factor in the defendant’s

convictions or otherwise deprived him of a fair trial. See People v. Johnson, 114 Ill. 2d 170, 199

(1986).

¶ 61      The other comments that the defendant complains about were not improper.            The

prosecutor’s sarcastic description of the defendant as “John Wayne *** draped in the American

flag” was within the latitude afforded prosecutors. See People v. Banks, 237 Ill. 2d 154, 183

(2010) (“The wide latitude extended to prosecutors during their closing remarks has been held to

include some degree of both sarcasm and invective to express their points.”). The prosecutor’s

comments that the defendant shot in the direction of Deputy Luna and that Deputy Satkiewicz



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was shot in the chest were all fair characterizations of the evidence. See People v. Henderson,

2017 IL App (1st) 142259, ¶ 239 (prosecutor may comment on the evidence and any fair,

reasonable inferences).

¶ 62    We also find without merit the defendant’s argument that, because he did not testify at

trial, it was improper for the State to comment on his credibility. Our supreme court has rejected

a similar argument. See People v. Kirchner, 194 Ill. 2d 502, 549 (2000); People v. Hudson, 157

Ill. 2d 401, 443 (1993). In neither Kirchner nor Hudson did the defendant testify. Kirchner, 194

Ill. 2d at 516; Hudson, 157 Ill. 2d at 421-22. In closing argument, the State accused the

defendant of trying to misdirect and “ ‘dupe’ ” the jury (Kirchner, 194 Ill. 2d at 550) or

presenting a “ ‘laughable’ ” defense (Hudson, 157 Ill. 2d at 442). The supreme court held that

the State’s comments were not improper, because the State may challenge the credibility of a

defendant and the defendant’s theory of defense when there is evidence to support such a

challenge. Kirchner, 194 Ill. 2d at 549; Hudson, 157 Ill. 2d at 443.

¶ 63    Here, in his statement to the police following his arrest, the defendant indicated that he

did not know that the people he shot at were police officers. This was contradicted by Deputy

Maness’s and Deputy Satkiewicz’s testimony that they identified themselves as police officers

when they first encountered the defendant. It was in response to the defendant’s statement that

the prosecutor asserted that the defendant was a “lying liar.” As the prosecutor’s argument was a

fair inference from the evidence, it was not improper. See Kirchner, 194 Ill. 2d at 549; Hudson,

157 Ill. 2d at 443; see also People v. Manley, 222 Ill. App. 3d 896, 910 (1991) (it is not improper

for the prosecutor to call the defendant a “liar” if conflicts in the evidence make such an

assertion a fair inference).




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¶ 64   In so ruling, we find unpersuasive the defendant’s reliance on this court’s decision in

People v. Mpulamasaka, 2016 IL App (2d) 130703. In that case, we found that the State had

engaged in prosecutorial misconduct by (1) using the alleged victim’s learning disability to

confuse the jury as to whether she had consented to sexual contact with the defendant,

(2) repeatedly referring to the defendant as a predator, (3) denigrating the defense expert,

(4) misstating the testimony of the State expert, (5) accusing defense counsel of attempting to

create reasonable doubt by confusion, misrepresentation, or deception, (6) telling the jury to

disregard the alleged victim’s cross-examination that was favorable to the defendant, and

(7) sitting in the witness chair to argue that the alleged victim was courageous while also

discussing the defendant’s credibility. Id. ¶¶ 107-13. As to the last point, we stated:

       “[D]efense counsel said in his opening statement that defendant would testify. Defendant

       later decided that he would not testify. Whether intentionally or not, by arguing [the

       alleged victim’s] courage and then transitioning to defendant’s credibility, the prosecutor

       might have reminded the jury that defendant did not testify, especially when the argument

       was made from the witness chair. Indeed, the most troubling aspect of the prosecutor’s

       conduct was leaving the podium and sitting in the witness chair to argue the victim’s

       credibility and courage and then discussing defendant’s credibility. There is no question

       that this tactic was designed to evoke sympathy for [the alleged victim] and disgust for

       defendant.” Id. ¶ 113.

¶ 65   Here, the prosecutor did not make any of the type of errors that we identified in

Mpulamasaka. As most pertinent here, the prosecutor’s statements did not call attention to the

defendant’s decision not to testify. When viewed in context, the prosecutor’s description of the

defendant as a “liar” was in response to the statement that the defendant gave to the police. As



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explained above, that was not improper. See Kirchner, 194 Ill. 2d at 549; Hudson, 157 Ill. 2d at

443.

¶ 66     We also reject the defendant’s argument that the State improperly argued in rebuttal that

the jury did not have to look through all of the evidence. The defendant insists that the State’s

argument misstated the jury’s obligation to consider all of the evidence before it. See People v.

Crossno, 93 Ill. App. 3d 808, 822 (1981) (error for prosecutor to argue that jurors could believe

only the prosecution witnesses).

¶ 67     Taken in context, the prosecutor’s point was that the evidence of the defendant’s guilt

was so clear that reviewing everything “over and over again” was unnecessary. We believe that

the State’s argument was within the latitude afforded prosecutors. See Wheeler, 226 Ill. 2d at

123. Moreover, even if the comment was improper, the evidence was not closely balanced and

thus the comment did not amount to plain error.

¶ 68     We also find that, because the evidence in this case was not closely balanced, and

because the prosecutor’s two improper comments had minimal impact, if any, on the jury, the

cumulative effect of the prosecutor’s comments did not deprive the defendant of a fair trial. See

People v. Minter, 2015 IL App (1st) 120958, ¶ 80 (as trial court’s errors had either a minor

impact or no impact at all, defendant did not show that, taken together, they deprived him of a

fair trial).

¶ 69                           F. Ineffective Assistance of Counsel

¶ 70     The defendant’s final contention on appeal is that he was deprived of the effective

assistance of counsel. Specifically, he contends that his trial counsel was ineffective for failing

to (1) file a motion to dismiss one of the charges on speedy-trial grounds, (2) file a motion to

suppress his statements to the police, (3) object to improper closing arguments by the



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prosecution, (4) object to the trial court’s phrasing of the fourth Zehr question, and (5) object to

his removal from the courtroom when he was not physically able to be there.

¶ 71      In order to succeed on a claim of ineffective assistance of trial counsel, a defendant must

satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People

v. Enis, 194 Ill. 2d 361, 376-77 (2000). The defendant must establish both that counsel’s

representation fell below an objective standard of reasonableness and that there is a reasonable

probability that, but for counsel’s errors, the outcome of the proceeding would have differed.

People v. Little, 335 Ill. App. 3d 1046, 1052 (2003). A reviewing court may dispose of an

ineffectiveness claim on the prejudice prong alone by determining that the defendant was not

prejudiced by counsel’s representation. People v. Munson, 171 Ill. 2d 158, 184 (1996).

¶ 72      We first address the defendant’s argument that his counsel was ineffective for failing to

seek to dismiss, on speedy-trial principles, count IV of the amended indictment, charging the

attempted first-degree murder of Deputy Satkiewicz. The defendant notes that, in the original

indictment, he was charged with two counts of the attempted murder of Deputy Satkiewicz.

Count III of that indictment alleged that he had shot Deputy Satkiewicz, causing severe bodily

harm. In the amended indictment, count III alleged that he had shot Deputy Satkiewicz, causing

severe bodily harm by shooting her in the leg; count IV alleged that he had shot Deputy

Satkiewicz, causing severe bodily harm by shooting her in the chest. The defendant insists that,

because no legitimate reason existed for not adding count IV and its factual basis to the original

charging instrument, count IV had to be filed within 160 days of the original charges. Because it

was not, the defendant argues that his counsel was ineffective for failing to move to dismiss that

charge.




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¶ 73   This issue involves the interrelationship between the speedy-trial rule (725 ILCS 5/103-5

(West 2014)) and the compulsory-joinder rule (720 ILCS 5/3-3 (West 2014)). The speedy-trial

rule provides, in pertinent part, that every defendant on bail or recognizance shall be tried within

160 days from the date he or she demands trial unless delay is occasioned by the defendant. 725

ILCS 5/103-5(b) (West 2014); People v. Hall, 194 Ill. 2d 305, 326 (2000). “Any period of delay

found to be occasioned by the defendant tolls the applicable statutory period.” Hall, 194 Ill. 2d

at 327. Under the compulsory-joinder rule, multiple charges against a defendant must be joined

in a single prosecution if the following three conditions are satisfied: (1) the multiple charges are

known to the prosecutor when the prosecution begins, (2) the charges are within the jurisdiction

of a single court, and (3) the charges are based upon the same act. See 720 ILCS 5/3-3(b) (West

2014); People v. Quigley, 183 Ill. 2d 1, 7 (1998).

¶ 74   The rules for tolling the speedy-trial period are more complicated if the compulsory­

joinder rule applies. As our supreme court has stated:

               “ ‘Where new and additional charges arise from the same facts as did the original

       charges and the State had knowledge of these facts at the commencement of the

       prosecution, the time within which trial is to begin on the new and additional charges is

       subject to the same statutory limitation that is applied to the original charges.

       Continuances obtained in connection with the trial of the original charges cannot be

       attributed to defendants with respect to the new and additional charges because these new

       and additional charges were not before the court when those continuances were

       obtained.’ ” People v. Phipps, 238 Ill. 2d 54, 66 (2010) (quoting People v. Williams, 94

       Ill. App. 3d 241, 248-49 (1981)).




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¶ 75    “In other words, when the compulsory-joinder rule applies, a delay that occurs on the

original charge (or charges) and that is attributable to defendant will not toll the speedy-trial

period as to a subsequent charge (or charges), if the delay occurred before the subsequent charge

was filed because the subsequent charge was not before the court when the delay occurred.”

People v. Kazenko, 2012 IL App (3d) 110529, ¶ 13. In such a situation, it cannot be assumed

that the defendant would have agreed to the delay if the new charge had been pending. Phipps,

238 Ill. 2d at 67.

¶ 76    This issue hinges on whether the attempted first-degree murder charges alleging that the

defendant shot Deputy Satkiewicz in the chest and the leg were new and additional charges to the

original attempted first-degree murder charge alleging that the defendant shot Deputy Satkiewicz

causing severe bodily harm. We review de novo the question of whether a subsequently filed

charge is considered “new and additional” under the rule in Phipps.

¶ 77    In Phipps, our supreme court observed that the purpose of the rule is to prevent trial by

ambush:

        “[T]he rule, therefore, centers on whether the defendant had adequate notice of the

        subsequent charges to allow preparation of a defense. The focus is on whether the

        original charging instrument gave the defendant sufficient notice of the subsequent

        charges to prepare adequately for trial on those charges.      If the original charging

        instrument gives a defendant adequate notice of the subsequent charges, the ability to

        prepare for trial on those charges is not hindered in any way. Thus, when the State files

        the subsequent charge, the defendant will not face ‘a Hobson’s choice between a trial

        without adequate preparation and further pretrial detention to prepare for trial.’

        [Citation.] Rather, the defendant may proceed to trial on the subsequent charges with



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       adequate preparation instead of being forced to agree to further delay.         In those

       circumstances, the rationale for declining to attribute to the defendant delays in

       connection with the original charges does not apply.” Id. at 67-68.

¶ 78   Phipps found that the original indictment and the subsequent charging instrument in that

case alleged the same conduct—that the defendant drove a motor vehicle under the influence of

alcohol and collided with another vehicle, causing the death of the victim. Id. at 68. The

original indictment thus provided the defendant with the material allegations of the subsequent

information. The court also found it significant that the two charges to be compared—reckless

homicide and aggravated DUI—had essentially the same elements and provided the same

penalty. Id. Phipps therefore concluded that the aggravated DUI charge was not “new and

additional” for speedy-trial purposes. Thus, any delays attributable to the defendant on the

reckless homicide charge were also attributable to him on the subsequent charge of aggravated

DUI, and consequently no speedy-trial violation occurred. Id. at 70.

¶ 79   We note that our supreme court recently discussed the issue of compulsory joinder in

People v. Staake, 2017 IL 121755. In that case, the defendant was originally charged with

second-degree murder. Id. ¶ 3. The State subsequently filed an amended information replacing

the charge of second-degree murder with one of first-degree murder. Id. ¶ 4. On appeal, the

defendant argued that the charge of first-degree murder was subject to compulsory joinder to the

original charge. Because that charge was not timely filed, the defendant argued, it should be

dismissed on speedy-trial grounds.     Id. ¶ 28.   The supreme court rejected the defendant’s

argument. The supreme court explained that both the original and amended charges alleged that

the defendant had committed the identical conduct of killing the victim with a knife. Id. ¶ 40.

Both charges also involved the same elements, as second-degree murder was not a lesser



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included offense of first-degree murder but rather “a lesser mitigated offense.” The supreme

court therefore concluded that the amended information was not improper, because the original

information provided the defendant notice of the material allegations in the subsequent

amendments. Id.

¶ 80   Here, the amended indictment did not include “new and additional” charges. Rather, the

amended indictment just provided more specificity. Instead of alleging that the defendant had

shot Deputy Satkiewicz “causing severe bodily harm,” the amended indictment alleged that the

defendant had shot Deputy Satkiewicz “causing severe bodily harm” by shooting her “in the leg”

(count III) and “in the chest” (count IV). The amended charges did not involve a different statute

or add any elements. Moreover, the defendant cannot successfully claim that the amended

indictment created a “trial by ambush.” The defendant was aware that he was being charged

with shooting Deputy Satkiewicz. His defense was that he believed that he was shooting at an

intruder, not a police officer. The fact that the State specified where the defendant shot Deputy

Satkiewicz had no bearing on his defense. Id. ¶ 42 (defendant not subject to trial by ambush

where amended information had no impact on theory of self-defense).

¶ 81   We conclude that the amended indictment did not include any new and additional

charges. The amended indictment therefore related back to the original indictment, and any

delays attributable to the defendant on the initial charges are also attributable to him on the

amended charges. The defendant does not argue any other basis for a speedy-trial violation in

this case. Thus, as no error occurred, defense counsel was not ineffective for failing to file a

motion to dismiss on speedy-trial grounds. See id. ¶ 46; see also People v. Givens, 237 Ill. 2d

311, 331 (2010) (counsel’s failure to file a motion does not demonstrate incompetent

representation when the motion would have been futile).



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¶ 82   We next turn to the defendant’s argument that his counsel was ineffective for not filing a

motion to suppress the defendant’s statements as based on a Miranda violation. The defendant

contends that such a motion would have been successful because he did not sign a Miranda

waiver and his statements were made only after he said that he could not afford a lawyer. The

defendant’s argument is contrary to United States Supreme Court precedent. See Davis v. United

States, 512 U.S. 452, 459 (1994); North Carolina v. Butler, 441 U.S. 369, 373 (1979).

¶ 83   In Butler, the Supreme Court held that whether a defendant has waived his Miranda

rights must be determined on the particular facts and circumstances surrounding that case,

including the background, experience, and conduct of the accused. Butler, 441 U.S. at 373-74.

The Supreme Court explained that, although an express written or oral statement of waiver is

strong proof of the validity of a waiver, it is not necessary to establish a waiver. Id. at 373. In

Davis, the Supreme Court held that police may continue questioning a suspect until he clearly

requests an attorney. Davis, 512 U.S. at 459.

¶ 84   Here, when informed of his Miranda rights, the defendant stated that he could not afford

an attorney. The defendant then proceeded to answer the officer’s questions. The defendant’s

statement was not a clear and unequivocal request for an attorney and thus was insufficient to

invoke his Miranda rights. See id.; see also Lord v. Duckworth, 29 F.3d 1216, 1220-21 (7th Cir.

1994) (the question, “I can’t afford a lawyer but is there any way I can get one?” lacked the clear

implication of a present desire to consult with counsel and thus was not an unequivocal request

for counsel). Therefore, the defendant’s subsequent statements were not given in violation of

Miranda. Davis, 512 U.S. at 459. Further, as the circumstances indicate that the defendant’s

statements were knowing and voluntary, the lack of a written waiver of his Miranda rights does

not establish that he did not waive those rights. Butler, 441 U.S. at 373. Accordingly, as the



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record indicates that the defendant did waive his Miranda rights, defense counsel was not

ineffective for not filing a motion to suppress the defendant’s statements as based on a Miranda

violation. Givens, 237 Ill. 2d at 331.

¶ 85   The defendant also claims that his counsel was ineffective for not objecting to

(1) improper prosecutorial comments, (2) the trial court’s phrasing of the Zehr question

regarding his decision not to testify, and (3) his physical removal from court when he was in too

much pain to be there. However, as we have already addressed those underlying issues and

found no reversible error, defense counsel was not ineffective for failing to make those

objections.   Munson, 171 Ill. 2d at 184.        Moreover, as we find that defense counsel’s

representation did not constitute ineffective assistance as to any individual issue, we do not

believe that the cumulative effect of defense counsel’s representation deprived the defendant of a

fair trial. See People v. Doyle, 328 Ill. App. 3d 1, 15 (2002).

¶ 86                                     III. CONCLUSION

¶ 87   For the reasons stated, the judgment of the circuit court of McHenry County is affirmed.

As part of our judgment, we grant the State’s request that the defendant be assessed $50 as costs

for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166,

178 (1978).

¶ 88   Affirmed.




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