People v. Harris , 998 N.E.2d 618 ( 2013 )

2013 IL App (1st) 111351
THIRD DIVISION
October 16, 2013
No. 1-11-1351
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) 99 CR 18554
)
RICARDO HARRIS, ) Honorable
) Colleen McSweeney-Moore,
Defendant-Appellant. ) Judge Presiding.
)
JUSTICE MASON delivered the judgment of the court, with opinion.
Justices Quinn and Pucinski concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant Ricardo Harris was convicted of two counts of murder,
one count of attempted murder and one count of aggravated battery with a firearm. Harris was
sentenced to death on the murder counts, and to consecutive terms of 30 years each on the
remaining counts. The Illinois Supreme Court affirmed Harris's convictions and sentence on
direct appeal. People v. Harris, 225 Ill. 2d 1 (2007). Harris's death sentence was subsequently
commuted to natural life.
¶2 Harris, assisted by counsel, filed a postconviction petition. The circuit court granted the
State's motion to dismiss the petition. On appeal, Harris contends that the circuit court erred in
dismissing the petition because he made a substantial showing that (1) the State violated its
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constitutional duty to disclose exculpatory evidence, (2) he received ineffective assistance of trial
counsel, and (3) his waiver of the right to counsel during a significant portion of pretrial
proceedings was not knowing, he was not competent to represent himself, and there was a bona
fide doubt regarding his fitness to stand trial. For the reasons that follow, we affirm the judgment
of the circuit court of Cook County.
¶3 BACKGROUND
¶4 On May 13, 1999, at approximately 7:25 p.m., the Oak Lawn police department received
a report of a shooting at the Extra Value liquor store in Oak Lawn, Illinois. Police officers
responding to the call discovered that four persons had been shot, store employees Dipak and
Ambalal Patel and customers Christina and Helen Chisnick. The victims were transported to the
hospital, where Dipak and Ambalal died from their wounds.
¶5 Christina and Helen went to the liquor store around 7:15 p.m. Christina parked her van in
the parking spot to the right of the store entrance. There were no other cars in the parking lot and
only Dipak and Ambalal were inside the store.
¶6 Christina and Helen walked down the aisle with the beer coolers and Ambalal walked
over to assist them while Dipak remained behind the counter. Christina took a case of beer from
the cooler and turned to see Dipak walking toward them and a man with a gun behind him. The
man shot Dipak, then shot Ambalal and Christina. Helen heard a gunshot and saw Ambalal's
chest turn bloody, then saw Christina fall to the floor. Helen turned and saw the gunman, who
was standing about five feet away. Helen looked at the gunman's face for several seconds. He
then shot her.
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¶7 Helen pretended to be dead for about 20 seconds and then went to the front of the store.
She saw a man and a woman, neither of whom had been in the store when she and Christina
arrived. She asked the woman to call 911 and the police and paramedics arrived shortly
thereafter.
¶8 Christina, who was shot twice, communicated briefly with an officer in the emergency
room before undergoing surgery. She told the officer that the gunman was a black male,
approximately 5 feet 9 inches with short, natural, black hair. A detective also interviewed Helen
in the emergency room while she was being treated for a single gunshot wound to the abdomen.
Helen told the detective that the offender was a black male, approximately 5 feet 11 inches and
170 pounds, and he was wearing a black shirt or jacket, black pants, and black shoes. The next
day, the detective interviewed Helen at length and, with her assistance, prepared a composite
sketch of the gunman.
¶9 In the meantime, detectives interviewed other witnesses at the scene. Jesse Lee, Jr., went
to the liquor store shortly before the shootings. Inside the store, he saw a black male and a
Hispanic male. When Lee left the store, he saw two other vehicles in the parking lot. A
Hispanic woman and a child were in one vehicle, and a black male was sitting in the driver's seat
of the other vehicle.
¶ 10 Lee drove to a gas station down the street and had been there for about 10 minutes when
he heard the sirens and saw the police vehicles at the liquor store. He returned to the store, told
police about the three men he had seen, and assisted the police in preparing composite sketches
of the men.
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¶ 11 Larry Lozano and Heather Doran both went to the liquor store shortly after the shootings
occurred and before police and paramedics arrived. Lozano told detectives that one of the male
victims told him the offenders were two black males. Doran told police she saw two men
running on Cicero Avenue before she pulled into a gas station to buy cigarettes. Five minutes
later, Doran drove to the liquor store and went inside, where one of the female victims told her
that four people had been shot by two black men and asked her to call 911.
¶ 12 On May 15, after reading about the liquor store incident in the newspaper, Frank Sarelli
contacted the police and informed them he had information about the shootings. Sarelli told the
police he was living at the Aloha Motel, five blocks from the Extra Value liquor store. Sarelli
met Harris at the motel on May 11 and smoked some crack cocaine with him. Harris then gave
Sarelli money to procure more drugs. Sarelli obtained drugs for Harris three separate times at
Harris's request on May 11 and 12.
¶ 13 After Sarelli delivered drugs to Harris for the third time, Harris told Sarelli he had a gun
he wanted to sell. Harris showed Sarelli a black, .40-caliber Glock handgun. Sarelli made calls
to several drug dealers he knew but was unable to sell the gun.
¶ 14 Harris came to Sarelli's room the morning of May 13 and asked for more cocaine. He
also told Sarelli that he was no longer interested in selling the gun because his brother and cousin
were coming into town from Michigan and they might want the gun. In a recording of the initial
call Sarelli made to police, he described the gun as "a Glock 40 caliber semiautomatic pistol, 13
shot clip." At the time Sarelli first contacted police, there was no reward posted for information
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relating to the shootings.1
¶ 15 On the basis of the information provided by Sarelli and from information obtained from
the Aloha Motel, police were able to obtain a picture of Harris from authorities in Michigan,
where Harris had escaped from police custody six days before the shootings. On May 15, 1999,
detectives visited Helen and showed her a photo array that included the picture of Harris they had
obtained. Helen selected Harris's photo and identified him as the person who shot her.
¶ 16 Also on May 15, Jean Janeway contacted the police and told them she and her husband
had gone to the liquor store shortly after the shootings. Her husband, Melville, parked the car to
the right of a van that was in the parking lot. The van obscured Janeway's view of the store
entrance. Janeway stayed in the passenger seat of the car while her husband went inside the
store. Melville remained in the store for two to three minutes. While she waited in the car,
Janeway saw a man walking on the sidewalk in front of the store. Janeway did not see him until
he walked past the front of the van. The man stopped and appeared surprised to see her, then
walked between her car and the van.
¶ 17 Approximately one minute later, Janeway's husband ran back to the car and told Janeway
about the victims he found inside the store. Her husband said he did not see anyone else in the
store. Although she did not say anything to police that evening about the man she had seen, two
days later Janeway told the police that she recognized the composite sketch that had been
broadcast on television the night before as the man she had seen outside the store that day.
1
By the time of trial, Sarelli testified that he expected to receive a reward of $2000 to
$2500 if Harris was convicted.
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Janeway subsequently selected Harris's photo from a photo array.
¶ 18 On May 16, detectives traveled to Flint, Michigan, to interview Harris's brother,
Roderick, whose name was on the Aloha Motel registration card and who was initially a suspect
in the case. On May 23, a detective visited Christina in the hospital, where she was still
recovering, and showed her the same photo array that had been shown to Helen, except that a
picture of Harris's brother had been substituted for one of the other photos. Christina selected
Harris's photograph from the array as the person who shot her. Prior to identifying Harris in the
photo array, Christina had not seen any news coverage of the incident and she had not seen
Harris's photo on broadcast television or in the newspaper.
¶ 19 On August 4, 1999, Harris was arrested in Charlotte, North Carolina. He had a North
Carolina identification card containing his photo and the name Joaquinn Alexander McCall, and
a social security card with the same name. Harris was extradited to Illinois, where the Oak Lawn
police conducted a physical lineup on August 7. Christina and Helen viewed the lineup
separately. In both viewings, each subject in the lineup walked up to a two-way mirror.
Christina and Helen both asked for Harris to approach the mirror a second time. Both of them
identified Harris. Sarelli and Janeway also viewed the lineup separately and both identified
Harris.
¶ 20 Harris was initially represented by an attorney with the public defender's office. During a
hearing on May 4, 2000, Harris requested the appointment of different counsel because he felt
that his appointed counsel "did not want to respect" any of the things Harris thought would be
helpful to his case and because Harris wanted a speedy trial. Harris further explained that he felt
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his appointed counsel was prejudiced against him because of his criminal history. The trial court
commented that if it was a matter of a personality conflict, Harris could try to work that out with
the public defender's office, but stated that Harris's only other options were to retain private
counsel or represent himself. The trial court advised Harris to reconsider his request for different
counsel and expressed confidence in the abilities and experience of Harris's appointed counsel.
Harris proceeded with his initial counsel for more than a year after that hearing.
¶ 21 On August 14, 2001, Harris again asked for the appointment of different counsel, stating
that he had no trust in his counsel and that he believed his counsel was working against him.
Harris's primary contention was that he believed he had been arraigned before he was formally
indicted, based on his understanding of different time stamps that appeared on copies of
documents he had received. The trial court assured Harris that he had been indicted by the grand
jury on August 12, 1999, and subsequently arraigned on August 16.
¶ 22 Harris reminded the court that he and his counsel were at odds from the beginning,
because Harris wanted a speedy trial so that the State would not have time to build a case against
him, but his counsel told him that no attorney "worth his salt" would take a client to a speedy trial
given the magnitude of the charges facing him. Harris stated that if the court would not appoint
new counsel, he would be forced to represent himself because he did not trust his current
counsel. The trial court admonished Harris that if he chose to represent himself, he would do so
at his peril and would be at a tremendous disadvantage. The trial court gave Harris a few weeks
to consider his decision.
¶ 23 At the next status hearing, Harris told the trial court he had decided not to represent
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himself because he had limited access to the law library and a very limited supply of law books.
The trial court admonished Harris that it was not going to allow him to vacillate regarding
whether to continue with appointed counsel and asked if Harris's decision was final. Harris said
that it was and that he and the two attorneys from the public defender's office had spoken prior to
the hearing and they were trying to resolve the trust issue.
¶ 24 A few months later, however, Harris again told the trial court that he wanted to discharge
his attorneys and represent himself because he did not trust either of them. Harris also requested
the appointment of counsel other than from the public defender's office due to a conflict of
interest. After considering Harris's complaints, the trial court observed that the issue was really a
disagreement over tactics or strategy, not a conflict of interest. The trial court declined to appoint
new counsel and agreed to reconsider Harris's motion to represent himself.
¶ 25 The trial court allowed Harris to argue facts in support of his allegation that counsel had
not acted in his best interest. Defense counsel explained to the trial court that Harris was initially
cooperative until he began to believe there was a conspiracy against him that included defense
counsel and the public defender's office and that every attempt to demonstrate to Harris that his
fears were unfounded had failed. The trial court considered Harris's motion to represent himself
together with another lengthy motion Harris had prepared asking for the appointment of a law
professor as his counsel. In denying both motions, the trial court found that (1) the allegations
raised were either spurious or pertained only to trial tactics or strategy, (2) defense counsel had
been zealous in his representation of Harris, (3) Harris was attempting to create a conflict of
interest by conjecture and meritless complaints, (4) no actual conflict had been shown, and (5)
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Harris would not be prejudiced if defense counsel continued to represent him. Harris then
elected to proceed pro se, but stated that he thought it was unfair and that he was only making
that decision because the court refused to appoint alternative counsel.
¶ 26 With respect to Harris's professed desire to represent himself, the trial court admonished
him, both verbally and in writing, regarding the nature of the charges, the possible penalties, and
the risks and requirements of self-representation. The trial court also gave Harris additional time
to consider his decision.
¶ 27 At the next hearing, Harris repeated his intention to proceed pro se and the trial court read
the admonishments again. Harris executed the waiver of counsel in open court. As a final
precaution, the trial court ordered a behavioral clinical examination (BCX) regarding Harris's
fitness to stand trial and his competency to make the decision to represent himself.
¶ 28 Dr. Roni Seltzberg from Forensic Clinical Services conducted the BCX, which took
months to complete. In connection with reaching her opinion regarding Harris's fitness to stand
trial and his ability to decide to represent himself, Dr. Seltzberg reviewed voluminous
documents, including medical records that reflected a history of substance abuse and head
injuries and failed to disclose a psychiatric history, transcripts of proceedings before the trial
court, and motions filed by Harris, including a lengthy handwritten document detailing his
complaints against his appointed counsel. Dr Seltzberg also interviewed Harris. The trial court
granted two continuances to allow Dr. Seltzberg to complete her report.
¶ 29 In her report, Dr. Seltzberg expressed her opinion that Harris was both fit to stand trial
and competent to decide to represent himself. Dr. Seltzberg was further of the opinion that
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Harris had a very good understanding of the nature of the charges and proceedings against him,
had the capacity to assist counsel in his defense, and his choice to represent himself did not
appear to be based on any psychotic process or cognitive disorder but, rather, on his own
interpretation of other matters unrelated to a psychiatric disturbance. The trial court then
accepted Harris's waiver of counsel.
¶ 30 Harris thereafter filed numerous pro se motions, participated in hearings on those
motions, conducted the depositions of five witnesses and requested and received the appointment
of several expert witnesses. Among others, Harris deposed Helen and Christina, both of whom
testified unequivocally that he was the person who shot them as well as Dipak and Ambalal.
Harris also deposed Janeway, who identified him as the person she saw in the parking lot the
night of the shootings.
¶ 31 After Harris was permitted to proceed pro se, the trial court periodically questioned him
as to whether he wished to continue to represent himself. Harris always responded affirmatively.
¶ 32 As the trial date approached, the trial court decided to appoint private counsel for the
limited purpose of addressing again Harris's claim that he had received ineffective assistance
from his prior counsel. Harris's appointed attorneys elected to stand on the previous motion and
did not present any supporting evidence. Harris's attorneys informed the court that, following
discussions with Harris regarding his right to testify in support of the allegations in his motion,
Harris stated that he did not wish to exercise that right. The motion was again denied and private
counsel was dismissed.
¶ 33 A few months later, Harris told the trial court he would like to reconsider his decision to
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proceed pro se because he realized he was not able to effectively represent himself. The trial
court later appointed the same private counsel to represent Harris at trial. Over the next 10
months, Harris's counsel reviewed all of the discovery, filed numerous motions, worked
diligently on mitigation, obtained the appointment of a second investigator, were present at the
deposition of Dr. Otto MacLin, the only defense expert, litigated and won a motion to suppress,
and successfully litigated a motion to exclude two of Harris's three prior convictions.
¶ 34 Harris refused to cooperate with his appointed counsel in developing mitigation evidence
in preparation for the sentencing phase of his trial. Although defense counsel repeatedly pursued
family members and others for information relating to mitigation, Harris expressed his desire to
the trial court that no mitigation evidence be presented.2
¶ 35 Harris's trial commenced on January, 30, 2004. The State called a firearms expert who
testified that the three bullets recovered during the investigation were .40-caliber, jacketed,
Hydrashock hollow-point bullets, a distinctive type of ammunition manufactured only by the
Federal Company. The bullets recovered from the store and from Ambalal's body were fired
from the same gun, and the five cartridge cases recovered from the store could also have been
fired from the same gun. Each cartridge had distinct elliptical firing pin impressions that are only
left by the firing pin of a .40-caliber handgun manufactured by the Glock Company.
2
In Harris's direct appeal, the supreme court observed that despite Harris's wishes, his
counsel had obtained various medical records. Addressing Harris's claim that his attorneys were
ineffective for failing to present this evidence in mitigation despite his contrary direction, the
court found counsel's decision not to use the records to be reasonable because, among other
things, they did not disclose that Harris suffered from any neurological disorder. Harris, 225 Ill.
2d at 48.
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¶ 36 Pauline Zelko, an officer with the Genesee County sheriff's department in Flint,
Michigan, testified that Harris was in her custody on May 7, 1999. At approximately 8 a.m. that
day, Harris disarmed Zelko, took her firearm, and escaped. Zelko's firearm was a .40-caliber
semiautomatic Glock handgun, loaded with .40-caliber, jacketed, Federal Hydrashock hollow-
point ammunition.
¶ 37 Helen testified that she gave the police a description of the gunman and helped the police
produce a composite sketch without speaking to Christina and without viewing any prior
composite sketches or photographs of other suspects. As noted, she identified Harris from a
photo array two days after the incident and before Harris's photo was broadcast on television and
in newspapers. Helen acknowledged that she later saw Harris's photo on television twice prior to
the physical lineup in August 1999.
¶ 38 Helen explained that she told the detective she was "70% sure" when she selected Harris's
photo in May because "[i]t wasn't a picture that shot me. It was a real person that shot me." She
wanted to see Harris in person to be 100% sure that he was the gunman. When she saw Harris in
the lineup in August, Helen knew he was the person who shot her, but asked to have him step
forward again so that he would know she had identified him.
¶ 39 Christina testified that at the time she viewed the photo array in May 1999, she had not
seen any television or print news coverage because of her medical condition. In particular,
Christina had not seen Harris's photo before viewing the photo array. Prior to the physical lineup
in August, Christina had seen Harris's photograph twice on television programs. During the
lineup, Christina asked if Harris could approach the mirror again and walk from left to right. She
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explained that she made that request because that was how Harris walked in the liquor store and
it was the only thing she could do to make Harris aware that she knew he was the one who shot
her. Christina then told the officer that Harris was the gunman.
¶ 40 Christina was asked about a statement she made when she selected Harris from the photo
array that her selection was based on his hair and the shape of his head. She explained that was
part of it, and also the shape of his eyes which she described as round rather than almond-shaped,
and his ears. Christina testified that she was certain of her identification of Harris as the person
who shot her.
¶ 41 Although Janeway was listed as a witness for the State, she did not testify at trial. Lozano
and Doran, who entered the liquor store shortly after the shootings, also did not testify. Lee
testified and his testimony was consistent with the account he gave police on May 13, 1999,
regarding people he saw in the store prior to the shootings.
¶ 42 Dr. Otto MacLin testified as a defense expert in eyewitness identification. MacLin, an
assistant professor at the University of Northern Iowa, holds advanced degrees in psychology.
Prior to trial, MacLin prepared a report containing 18 opinions relating to the fallibility of
eyewitness identification, including, among others, the concept of "weapons focus," i.e., that
when a person is threatened with a gun, the person's attention is drawn to the weapon and not the
face of the person holding it, thus making later identification less reliable; the difficulty inherent
in eyewitness identification of offenders of a different race; and the effect that images of a
suspect shown on broadcast media have on later identifications by eyewitnesses. Over the State's
objection, the trial court ultimately granted defense counsel's request that MacLin be permitted to
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testify regarding cross-racial identifications and weapons focus. Defense counsel did not pursue
tendering MacLin as an expert on the effect of media coverage on eyewitness identification.
¶ 43 Following his convictions, which, as noted, were affirmed on direct appeal, Harris filed,
with the assistance of counsel, a postconviction petition on April 1, 2008, that raised 10 issues.
Attached to the petition were medical records, police reports, and numerous affidavits, including
those of Janeway, Doran, MacLin, Dr. Robert Hanlon, a neuropsychologist, and Matthew
McQuaid, one of Harris's trial attorneys. Harris subsequently amended the petition to include
two issues challenging his death sentence. The circuit court granted the State's motion to dismiss
on July 23, 2010. While Harris's motion to reconsider was pending, his death sentence was
commuted to natural life. On April 15, 2011, the circuit court denied Harris's motion to
reconsider. Harris timely filed this appeal.
¶ 44 ANALYSIS
¶ 45 On appeal, Harris contends that the circuit court erred in dismissing his petition because
he made a substantial showing that the State violated its constitutional duty to disclose
exculpatory evidence by not informing the defense that Janeway recanted her identification of
Harris. Additionally, Harris contends that he made a substantial showing that his trial attorneys
were ineffective for failing to present (1) exculpatory evidence, including that Janeway lied when
she initially identified Harris and that two of the victims told bystanders that two men committed
the shootings, and (2) expert testimony regarding the effect of postevent information on the
reliability of eyewitness identification, and for failing to request a fitness hearing. Finally, Harris
contends that he made a substantial showing that his waiver of the right to counsel was not
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knowing and intelligent, that he was not competent to represent himself, and that there was a
bona fide doubt regarding his fitness to stand trial, which should have been explored by the trial
court at a fitness hearing.
¶ 46 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)) provides
a procedural mechanism by which any person imprisoned in the penitentiary may assert that there
was a substantial denial of a federal or state constitutional right in the proceeding that resulted in
his or her conviction. 725 ILCS 5/122-1(a) (West 2008); People v. Harris, 224 Ill. 2d 115, 124
(2007). Postconviction proceedings may consist of up to three stages. People v. Pendleton, 223
Ill. 2d 458, 471-72 (2006). At the first stage, the circuit court, without any input from the State,
may dismiss a petition that is frivolous and patently without merit. Harris, 224 Ill. 2d at 126. A
petition must present "the gist of a constitutional claim" to survive beyond the first stage. Id. At
stage two, the circuit court may appoint counsel for the defendant and the State may move to
dismiss the petition. Id. At the second stage, the relevant inquiry is whether the petition sets
forth facts that, if true, make a substantial showing of a constitutional violation. Id. A petition
that is not dismissed at the second stage proceeds to the third stage where the circuit court
conducts an evidentiary hearing. Id.
¶ 47 At both the second and third stages of postconviction proceedings, the defendant bears
the burden of making a substantial showing of a constitutional violation. Pendleton, 223 Ill. 2d
at 473. At the second stage of the proceedings, all well-pleaded facts not positively rebutted by
the trial record are taken as true. Id. The circuit court does not engage in fact-finding or
credibility determinations at the second stage; rather, such determinations are made at the
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evidentiary stage. People v. Coleman, 183 Ill. 2d 366, 385 (1998). Here, the circuit court
granted the State's motion to dismiss Harris's postconviction petition. The decision to grant a
second-stage motion to dismiss is a matter of law and subject to de novo review. Id. at 387-88;
Pendleton, 223 Ill. 2d at 473.
¶ 48 I. The Claimed Brady Violation
¶ 49 Harris first contends that he made a substantial showing that the State violated Brady v.
Maryland, 373 U.S. 83 (1963), when it failed to disclose that Janeway recanted her identification
of Harris as the person she saw in the parking lot after the shootings. In an affidavit attached to
the postconviction petition, Janeway attests that after she testified in a deposition that Harris was
the person she had seen outside the liquor store on the day of the shootings, she continued to
meet with prosecutors. On one such occasion prior to trial, she told a female assistant State's
Attorney whose name she could not recall that she lied at her deposition and that Harris was not
the man she had seen outside the store.
¶ 50 It is well settled that "the prosecution must disclose evidence that is favorable to the
accused and material either to guilt or to punishment." (Internal quotation marks omitted.)
People v. Harris, 206 Ill. 2d 293, 311 (2002) (quoting Brady, 373 U.S. at 87). The standard for
materiality under Brady is whether there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different. Id. Under this
standard, a reviewing court does not consider the sufficiency of the evidence, but rather whether
"the favorable evidence could reasonably be taken to put the whole case in such a different light
as to undermine confidence in the verdict." (Internal quotation marks omitted.) Id. at 311-12
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(quoting People v. Coleman, 183 Ill. 2d 366, 393 (1998)).
¶ 51 In Kyles v. Whitley, cited by Harris, the Supreme Court commented that "the Constitution
is not violated every time the government fails or chooses not to disclose evidence that might
prove helpful to the defense." Kyles v. Whitley, 514 U.S. 419, 436-37 (1995) (citing United
States v. Bagley, 473 U.S. 667, 675 (1985)). Kyles recognizes that prosecutors have both the
discretion to determine whether disclosure is required and the responsibility "to gauge the likely
net effect of all such evidence and make disclosure when the point of 'reasonable probability' is
reached." Kyles, 514 U.S. at 437.
¶ 52 At the outset, it should be noted that the premise of Harris's Brady argument is his
contention that the State's case against him at trial was "weak" and thus the State's failure to
disclose Janeway's recantation takes on greater significance. That characterization is not borne
out by the record.
¶ 53 The State's evidence at trial tied Harris to the crime through the testimony of two
eyewitnesses and uncontroverted proof that, from May 7 through May 12, Harris was in
possession of the distinctive type of weapon and unique ammunition used on the night of the
murders. In particular, Helen and Christina – two eyewitness/victims – identified Harris as the
shooter shortly after the incident and never wavered from that position.3 The State also traced
3
To the extent Harris claims that Helen and Christina were "tentative" in their
identifications because (1) Helen said she was "70% sure" that Harris was the shooter after
viewing the photo array, but wanted to see him in person, (2) Christina allegedly told a police
officer she did not get a good look at the shooter's face (a statement she denied making), and (3)
both Helen and Christina asked that Harris approach the two-way mirror twice when they
identified him in the lineup, Harris was able to fully explore these issues through cross-
examination of Helen and Christina and the testimony of other witnesses at trial. The State's
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possession of a .40-caliber Glock, the type of weapon used in the incident, and its sole-source
ammunition to Harris. Michigan police officer Zelko testified that six days before the shooting,
Harris was in her custody. He disarmed her and escaped. Harris took Zelko's .40-caliber
semiautomatic Glock handgun loaded with .40-caliber, jacketed Federal Hydrashock hollow-
point ammunition. Firearms expert Jeffrey Parise testified that three bullets recovered from the
victims and the scene were .40-caliber, jacketed Federal Hydrashock, hollow-point bullets. A
bullet recovered from Ambalal's body and another found on the floor of the store were fired from
one gun to the exclusion of all others. The fired cartridge cases recovered from the store had
markings that could only have been made by the firing pin of a .40-caliber handgun manufactured
by the Glock Company. Sarelli testified that two days before the shootings Harris asked his help
in selling a .40-caliber Glock handgun, which Harris showed to Sarelli. Harris was living at the
Aloha Motel, five blocks from the scene of the shootings. In the face of the foregoing evidence,
the fact that the weapon was not recovered does not translate into a finding that Harris was
convicted on the basis of "weak" evidence. Consequently, in light of the strength of the State's
case against him, Harris faces an uphill battle to demonstrate that the sole instance of non-
disclosure raised in his petition rises to the level of a Brady violation.
¶ 54 Taking the nondisclosure of Janeway's recantation as true, this evidence is neither
material nor exculpatory. First, Janeway was not an eyewitness to the shootings. She and her
husband arrived at the liquor store after the shootings. Janeway was sitting in the passenger seat
of a car outside the liquor store and her view of the store entrance was obscured by Christina's
failure to disclose Janeway's recantation thus had no effect on this aspect of Harris's defense.
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cargo van.4 After her husband went inside the store and had been in the store for two minutes or
so, she saw a man walking on the sidewalk in front of the store, but she did not see him until he
walked in front of the van and he then proceeded to walk through the parking lot between the van
and her car. It was not until Janeway saw the composite on television that she contacted the
police and told them the man in the composite was the man she had seen in front of the store.
¶ 55 Melville Janeway, Lozano, and Doran, who each entered the store shortly after the
shootings, told police they did not see anyone leaving the store. Thus, the likelihood that the
person on the sidewalk was the shooter was remote, at best. There was therefore no reason to
believe the man Janeway had seen was connected with the shootings until Janeway later claimed
that Harris, the person who had already been identified by Helen as the gunman, was the man she
had seen that day. As Harris's trial counsel noted at a pretrial hearing, Janeway's original account
placing Harris at the scene at least several minutes after the shootings and after others had arrived
on the scene was improbable.
¶ 56 Second, Janeway did not testify at trial. The jury never heard that someone who arrived
at the store after the shootings identified Harris as being at the scene. Instead, the jury found
4
Janeway's affidavit submitted with Harris's postconviction petition clearly overstates her
deposition testimony: "At that deposition, I said that Ricardo Harris was the man I saw come out
of the liquor store and in the liquor store parking lot." (Emphasis added.) In her deposition,
Janeway does not say anything about seeing a man exit the store. The next sentence of the
affidavit, however, states only that Janeway was not telling the truth when she identified Harris
"as the man I saw in the liquor store parking lot." (Emphasis added.) This second sentence is
entirely consistent with the police report in which she indicated that she could not see the store's
entrance from the car because her view was blocked by Helen and Christina's van. Harris's effort
to use the misstatement in the first sentence to argue that Janeway must have seen someone other
than Harris come out of the store is thus factually unsupported.
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Harris guilty on the basis of the identification made by the surviving victims and the
circumstantial evidence that placed Harris in the vicinity of the liquor store prior to the shootings
and connected Harris to a weapon of the same make and caliber and with the same unique
ammunition as the weapon used in the crime. Therefore, Janeway's initial identification neither
played a role in Harris's conviction nor is it reasonably probable that her recantation, had it been
disclosed, would have produced a different result at trial. Her testimony either way was simply
not material.
¶ 57 Finally, Janeway's recantation was not exculpatory or even "favorable" to Harris. If no
witness placed Harris in the parking lot several minutes after the shootings, it would not make it
less likely that he was, in fact, the shooter.
¶ 58 In a different vein, Harris contends that Janeway's initial identification of him after the
composite and his photo were broadcast on television and in newspapers and her later admission
that the person she saw was not, in fact, Harris, would have bolstered the defense theory that
eyewitness identifications following media displays of a suspect's likeness are inherently
unreliable. While Janeway's about-face may theoretically illustrate one of MacLin's opinions
(which defense counsel elected not to pursue at trial)5, its relevance is exceedingly marginal in
the context of a case where two victims identified Harris from a photo array without any
exposure to media coverage. Thus, while Janeway's recantation may have tended to show that
she was susceptible to being influenced by images of Harris she saw in the media, it would have
5
For the reasons discussed infra ¶¶ 65-66, this tactical decision does not give rise to an
ineffective assistance claim.
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had absolutely no bearing on the validity of Helen's and Christina's identifications.
¶ 59 Harris's attempt to bolster his Brady violation claim by analogizing the State's failure to
disclose Janeway's recantation to the failure to disclose an informant's statements in Kyles is
without merit. Virtually the only similarity between Janeway and the informant in Kyles is that
neither testified at trial. The informant whose statements were never disclosed in Kyles was
"essential" to the State's investigation and he " 'made the case' " against the defendant. Kyles,
514 U.S at 445. Here, Janeway's statement was disclosed to defense counsel and given the fact
that she was not an eyewitness to the shootings, her testimony was clearly not essential to the
State's case.
¶ 60 Moreover, in this case, the prosecution's failure to disclose Janeway's recantation is the
only claimed Brady violation. In contrast, the prosecution in Kyles failed to disclose
contemporaneous eyewitness statements containing inconsistent descriptions of the offender,
numerous (and manifestly contradictory) statements given by the informant (some of which
tended to implicate the informant in the murder), information tending to show defendant's vehicle
was not parked in the lot where the murder occurred, and evidence linking the informant to other
crimes at the scene. The Supreme Court found that the cumulative effect of the suppression of
this evidence undermined confidence in the verdict. Id. at 453.
¶ 61 The same cannot be said in this case. The fact that Janeway recanted her identification of
Harris as the person she saw outside the store after the shootings does not "put the whole case in
such a different light as to undermine confidence in the verdict." Thus, we conclude that Harris
has not made a substantial showing of a Brady violation.
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¶ 62 II. Harris's Ineffective Assistance Claim
¶ 63 Next, Harris contends that he has made a substantial showing that his trial attorneys were
ineffective for failing to (1) adequately investigate or present at trial Janeway's statement to a
prosecutor that she lied when she identified Harris, and statements that would have supported the
theory that two men other than Harris shot the victims, and (2) present testimony from MacLin
concerning the effect of postevent publicity on the reliability of eyewitness identification.
¶ 64 Ineffective assistance of counsel claims are measured against the standard set forth in
Strickland v. Washington, 466 U.S. 668 (1984). To prevail on a claim of ineffective assistance, a
defendant must show both that counsel's representation fell below an objective standard of
reasonableness and that there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. Id. at 687-88, 694; see also People
v. Edwards, 195 Ill. 2d 142, 162-63 (2001). "A reasonable probability is a probability sufficient
to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Because a defendant
must establish both prongs for a successful ineffective assistance claim, a court considering such
a claim need not determine the reasonableness of counsel's performance before considering
whether defendant suffered prejudice as a result of the alleged deficiency. Id. at 697; Edwards,
195 Ill. 2d at 163.
¶ 65 With respect to counsel's failure to investigate and present evidence regarding Janeway's
faulty identification, as previously discussed, Janeway's admission the person she saw outside the
store several minutes after the shootings was not Harris is not exculpatory evidence, nor is it
evidence that someone other than Harris committed the shootings. There is nothing in Janeway's
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affidavit to suggest that the individual she saw was the gunman.
¶ 66 Indeed, contrary to the affidavit submitted by McQuaid in support of Harris's
postconviction petition in which he attests that had he known Janeway recanted he would have
called her as a witness at trial, McQuaid's co-counsel expressed the opposite opinion regarding
the value of Janeway's identification of Harris at a pretrial hearing. Co-counsel stated (with
McQuaid present): "[O]ur position is it [Janeway's testimony] is completely inconsistent with
what the two surviving victims describe, that five minutes later Ricardo Harris was standing
outside the liquor store milling around." Given trial counsel's understandable skepticism
regarding Janeway's identification of Harris, if counsel had learned of Janeway's recantation prior
to trial, she would have become irrelevant as a witness to both the State and the defense. Thus,
Harris has not met the prejudice prong under Strickland and, as a result, he has not made a
substantial showing that counsel was ineffective for failing to further investigate Janeway's
statements.6
¶ 67 Harris also argues that his trial attorneys were ineffective for failing to pursue evidence
that two shooters were involved in the crime. In particular, Harris points to evidence that Doran
and Lozano, who arrived at the store shortly after the shootings, were told by separate victims
that the shooters were "two black men." According to police reports, Doran told police that one
of the female victims came to the front of the store, told her that multiple people had been shot
6
Harris also does not articulate what would have prompted his trial counsel to "further
investigate" Janeway given the consistency of her pretrial identifications of Harris. Taking the
nondisclosure of her recantation as true, there would have been no reason for defense counsel to
take steps to obtain any additional information from Janeway.
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by two men and asked her to call 911. Lozano also told police that one of the male victims told
him that two individuals were responsible for the shootings.
¶ 68 As a threshold issue, accepting as true these witness statements, they do not exclude the
possibility that Harris was one of the shooters. Consequently, the introduction of victim
statements that two shooters were involved would not have helped Harris given the other
evidence that tied him to the crime regardless of whether or not he acted alone.
¶ 69 Moreover, Harris's postconviction petition does not raise a substantial issue on this point.
Helen is the only victim who walked to the front of the store after she had been shot, and Helen
testified that she told Doran only that multiple people had been shot and asked her to call 911.
Doran's affidavit attached to Harris's postconviction petition states that she cannot remember
Helen saying anything other than that they had been shot and asking her to call 911. Thus, given
that Doran's affidavit does not support the two-shooter theory, it follows that counsel cannot be
deemed ineffective for failing to present her testimony.
¶ 70 With respect to Lozano's statement to the police, the record reflects that Harris's
appointed attorneys requested and received a delayed trial date so that they could locate and
interview Lozano, in the hopes that his testimony could support the two shooter theory. There is
nothing in the record to indicate the result of that interview, but the defense did not, in fact, call
Lozano as a witness. Harris has not attached an affidavit from Lozano to the petition.
Consequently, because Harris has not even established what Lozano's testimony would have
been, Harris has failed to demonstrate that his counsel were ineffective for not presenting
Lozano's testimony at trial.
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¶ 71 Harris also argues that trial counsel should have presented Doran's statement to police
that she saw two men running away from the direction of the liquor store five minutes before she
arrived at the store. Again, accepting Doran's statement to the police as true, it does not discount
the possibility that Harris was one of those men.
¶ 72 Further, Harris's arguments regarding the relevance of Doran's statement are internally
inconsistent. In his ineffective assistance argument, Doran's statement supposedly supports the
two-shooter theory. However, in connection with his Brady argument, Harris contends that
Doran must have entered the store almost immediately after the shootings because Helen testified
that she encountered Doran within a minute after she was shot. Thus, under this iteration of
Harris's argument, Doran's statement regarding the two men she saw running in the opposite
direction five minutes earlier is obviously irrelevant because she would have seen them even
before the shootings occurred.7
¶ 73 Harris further contends that his trial attorneys were ineffective for failing to present
expert testimony about how post-event publicity can lead to misidentification. In the context of
this case involving two eyewitnesses who identified Harris prior to seeing any pictures of him in
the media, this argument is specious. Moreover, the only photo of Harris that Helen and
Christina saw on television prior to the physical lineup in August was the one they had already
picked out of the photo array in May. It is, therefore, impossible that their exposure to this photo
7
Harris raises an additional argument regarding another witness who looked out the
window of her trailer home across the street from the liquor store after the shootings. She
claimed she saw a "suspicious" man standing behind a street sign looking into the store. The
lack of relevance of this testimony is so obvious that we will not separately address it.
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could have produced an unreliable identification. Because MacLin's opinion regarding the
possibility that postevent publicity can produce unreliable identifications was absolutely
irrelevant, counsel cannot be deemed ineffective for failing to present it.
¶ 74 III. Harris's Decision to Proceed Pro Se and his Fitness to Stand Trial
¶ 75 Finally, Harris contends that he made a substantial showing that his waiver of the right to
counsel was not knowing and intelligent, that he was not competent to represent himself, and that
there was a bona fide doubt regarding his fitness to stand trial. With regard to the fitness claim,
Harris argues that the trial court erred by not ordering a fitness hearing or, alternatively, that trial
counsel was ineffective for not requesting a fitness hearing.
¶ 76 It is necessary to place Harris's arguments on these issues in context. For over two years
following his arraignment in August 1999, Harris was represented by attorneys from the Public
Defender's office. At Harris's request and after the extensive proceedings detailed above, Harris
was allowed to waive counsel and he represented himself from October 2001 until March 18,
2003, when, again at his request, counsel were appointed to represent him at trial. Trial
commenced 10 months later in January 2004.
¶ 77 Although Harris argues that several significant pretrial steps were taken during his period
of self-representation, including the depositions of witnesses (conducted in open court in the
presence of the trial judge) and the appointment of an expert, he does not claim that there were
any adverse rulings or other developments that prejudiced the preparation of his defense.
Furthermore, during the 10 months he was represented by appointed counsel prior to trial, Harris
does not point to any occasion on which counsel ever asked for and were refused the opportunity
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to revisit any motions or rulings made during the time Harris proceeded pro se.
¶ 78 Therefore, this case is clearly unlike those in which criminal defendants were
unrepresented for the entirety of their criminal prosecution. See People v. Lego, 168 Ill. 2d 561(1995). But since even a short period of self-representation can give rise to a constitutional claim
if it occurs during a " 'critical stage' " of criminal proceedings, People v. Vernon, 396 Ill. App. 3d
145, 154 (2009), we will examine Harris's claim that he is entitled to postconviction relief
because he was not competent to waive his right to counsel.
¶ 79 Before a court accepts a waiver of counsel, it must determine that the defendant is
competent to stand trial and that the waiver of counsel has been knowingly and voluntarily made.
Godinez v. Moran, 509 U.S. 389, 400 (1993); see also People v. Kidd, 178 Ill. 2d 92, 104 (1997).
A knowing and voluntary waiver requires a full awareness of the nature of the right being
abandoned and the consequences of the decision to abandon it. Kidd, 178 Ill. 2d at 104-05. In
connection with allowing a defendant to proceed pro se, the trial court must determine, in open
court, that the defendant understands the nature of the charge, the minimum and maximum
sentence proscribed by law, and that he has a right to have counsel appointed if he is indigent.
Ill. S. Ct. R. 401(a) (eff. July 1, 1984). The record amply reflects the trial court's strict adherence
to the foregoing requirements.
¶ 80 It is axiomatic that the prosecution of a defendant who is not fit to stand trial is a
violation of due process. See People v. Easley, 192 Ill. 2d 307, 318 (2000) (and cases cited
therein). A defendant is presumed to be fit to stand trial, and is only entitled to a fitness hearing
when a bona fide doubt regarding the defendant's fitness is raised. Id. A defendant will be
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considered unfit only if, because of the defendant's physical or mental condition, the defendant is
unable to understand the nature or purpose of the proceedings and assist in his or her defense. Id.
Relevant factors that may be considered by the trial court in assessing whether a bona fide doubt
regarding fitness exists include a defendant's irrational behavior, demeanor at trial, and any prior
medical opinion on defendant's fitness to stand trial. Id. at 318-19.
¶ 81 If a defendant who is fit to stand trial has determined to waive the right to counsel, a trial
court must accede to that request. "Although a court may consider a defendant's decision to
represent himself unwise, if his decision is freely, knowingly, and intelligently made, it must be
accepted out of 'that respect for the individual which is the lifeblood of the law.' " (Internal
quotation marks omitted.) Lego, 168 Ill. 2d at 563-64 (quoting Illinois v. Allen, 397 U.S. 337,
350-51 (1970)). Once the court has assured itself that the waiver is valid, it may not force a
defendant to continue to be represented by counsel he does not want. Faretta v. California, 422
U.S. 806, 833-34 (1975).
¶ 82 Harris is entitled to relief on this postconviction claim only if the facts in his petition
make a substantial showing that the trial court would have ordered a fitness hearing if it had been
apprised of the evidence now offered. Easley, 192 Ill. 2d at 319. In support of his claim, Harris
submitted two affidavits from Dr. Robert Hanlon. Dr. Hanlon attested that Harris suffered four
significant incidents of head trauma in his lifetime. Moreover, neurocognitive testing results
indicated three categories of mild to moderate neurocognitive impairment in the following areas:
(1) attention and information processing, (2) memory, and (3) executive functioning. Finally,
testing demonstrated a large difference between Harris's verbal and nonverbal IQ scores. Dr.
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Hanlon is of the opinion "to a reasonable degree of neuropsychological certainty," that at the time
he waived his right to counsel Harris "could not have been able to understand the dangers and
disadvantages of representing himself, nor could he have been fully aware of the consequences of
proceeding without a lawyer."
¶ 83 Although the State contends that Dr. Hanlon's findings "to a reasonable degree of
neuropsychological certainty" utilize an invalid standard (a contention that may well be correct),
we note that even if we take as true Dr. Hanlon's opinion that Harris suffers from cognitive
impairments, this does not compel the conclusion that Harris has raised a bona fide doubt as to
his fitness to stand trial. "Fitness speaks only to a person's ability to function within the context
of a trial. It does not refer to sanity or competence in other areas. A defendant can be fit for trial
although his or her mind may be otherwise unsound." Id. at 320. The relevant inquiry is whether
Harris was able to understand the nature of the proceedings and participate in his defense.
¶ 84 Nor is it necessary, as Harris contends, to weigh the credibility of Dr. Hanlon's versus Dr.
Seltzberg's opinions in order to reach this result. Given that Harris represented himself for over a
year, during which time he filed motions, appeared before the trial court numerous times and
deposed a number of witnesses, the record provides ample evidence that Harris understood the
nature of the proceedings against him and was able to participate in his defense. Despite the
voluminous record on appeal, Harris has not identified a single occasion upon which he said or
did anything indicating that he was delusional or otherwise out of touch with reality. Indeed, the
record demonstrates otherwise.
¶ 85 Unlike the defendant in Lego, who informed the court that he had " '40-years
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experience' " in representing himself and others and believed that his legal skills equaled or
exceeded those of any attorney (Lego, 168 Ill. 2d at 565), Harris had no such illusions. He
recognized that representing himself put him at a disadvantage, complained that it was "unfair,"
and ultimately requested appointed counsel precisely because he recognized he could not
effectively represent himself at trial. The record also shows that Harris's lack of cooperation with
his initial counsel and his refusal to participate in the mitigation evidence portion of his trial with
subsequent counsel was not due to his unfitness, but, rather, to his personal antipathy toward his
initial counsel and his conscious decision to refrain from presenting any evidence in mitigation.8
"Defendant's unwillingness to cooperate with counsel cannot be deemed equivalent with an
inability to do so." (Internal quotation marks omitted.) Id. (quoting People v. O'Neal, 62 Ill.
App. 3d 146, 149 (1978)). Harris was clearly not delusional.
¶ 86 Finally the record flatly refutes the notion that Harris could not knowingly and
intelligently waive his right to counsel because neurocognitive impairments rendered it
impossible for him to understand the risks and disadvantages of representing himself. When
Harris first informed the court of his desire to proceed pro se, the court urged him to reconsider
his decision and continued the case for several weeks. When he returned, Harris advised the
court that he had reconsidered given his lack of regular access to the library and law books.
Thus, Harris clearly understood that there would be disadvantages in proceeding without a
8
As we have already observed (supra ¶ 34 n.2), Harris's decision to refrain from
presenting evidence in mitigation can be readily explained by the fact that, as noted by our
supreme court, such evidence would not have been helpful and, in some respects, would have
proved detrimental to Harris in the sentencing phase.
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lawyer and consciously chose to continue with his appointed counsel. After Harris was permitted
to represent himself for a little over a year, he again informed the court that he did not believe he
should continue to proceed without a lawyer and, at his request, private counsel represented him
from that point through trial and sentencing.
¶ 87 Thus, Harris's own conduct demonstrates that he was accutely aware of the risks of self-
representation, so much so that he reversed course and requested the appointment of counsel to
represent him at trial. In the face of this record, it is impossible for Harris to make a substantial
showing that he was either unfit for trial or incompetent to decide to waive counsel.
¶ 88 Given our conclusion that Harris was competent to waive counsel and that he did so
knowingly and voluntarily, it follows that the trial court did not err in failing to hold a fitness
hearing and Harris's counsel was not ineffective for failing to request one.
¶ 89 For the reasons stated herein, we hold that the circuit court did not err in granting the
State's motion to dismiss Harris's postconviction petition and we affirm the judgment of the
circuit court.
¶ 90 Affirmed.
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