People v. Peters , 99 N.E.3d 489 ( 2018 )

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
-2­
2018 IL App (2d) 150650
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.
-3­
2018 IL App (2d) 150650
¶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
-4­
2018 IL App (2d) 150650
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
-5­
2018 IL App (2d) 150650
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
-6­
2018 IL App (2d) 150650
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
-7­
2018 IL App (2d) 150650
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
-8­
2018 IL App (2d) 150650
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
-9­
2018 IL App (2d) 150650
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
- 10 ­
2018 IL App (2d) 150650
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.
- 11 ­
2018 IL App (2d) 150650
¶ 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.
- 12 ­
2018 IL App (2d) 150650
¶ 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
- 13 ­
2018 IL App (2d) 150650
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
- 14 ­
2018 IL App (2d) 150650
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.
- 15 ­
2018 IL App (2d) 150650
¶ 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
- 16 ­
2018 IL App (2d) 150650
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.
- 17 ­
2018 IL App (2d) 150650
¶ 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
- 18 ­
2018 IL App (2d) 150650
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
- 19 ­
2018 IL App (2d) 150650
(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.
- 20 ­
2018 IL App (2d) 150650
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.]”
- 21 ­
2018 IL App (2d) 150650
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
- 22 ­
2018 IL App (2d) 150650
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).
- 23 ­
2018 IL App (2d) 150650
¶ 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
- 24 ­
2018 IL App (2d) 150650
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
- 25 ­
2018 IL App (2d) 150650
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.
- 26 ­
2018 IL App (2d) 150650
¶ 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)).
- 27 ­
2018 IL App (2d) 150650
¶ 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
- 28 ­
2018 IL App (2d) 150650
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
- 29 ­
2018 IL App (2d) 150650
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).
- 30 ­
2018 IL App (2d) 150650
¶ 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
- 31 ­
2018 IL App (2d) 150650
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.
- 32 ­