Opinion
4-21-0562
12-06-2022
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEE A. PEARCE, Defendant-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Macon County No. 20CF1551 Honorable Phoebe S. Bowers, Judge Presiding.
JUSTICE CAVANAGH delivered the judgment of the court. Justices Turner and Zenoff concurred in the judgment.
ORDER
CAVANAGH, JUSTICE
¶ 1 Held:
(1) Footage from a police officer's body-worn video camera was admissible to rebut defendant's testimony that a police officer had menaced defendant with a gun. Also, in this arson case, the footage was relevant to prove defendant's agitated state of mind, considering that he admitted he had "freaked out" and lit a fire.
(2) Because defendant evinced an understanding of the nature and purpose of the proceedings against him and demonstrated an ability to assist with the defense, there was no bona fide doubt of his fitness.
(3) Although defendant accuses defense counsel of ineffective assistance, he fails to show that the omissions of which he complains fell outside the wide realm of reasonable professional assistance and that, without the omissions, there would have been a reasonable probability of a different outcome.
(4) The underrepresentation of a group in a venire is a violation of a defendant's right to a trial by a jury of his or her peers only if the underrepresentation was a result of the intentional, systematic exclusion of that group.
¶ 2 A Macon County jury found defendant, Lee A. Pearce, guilty of aggravated arson (720 ILCS 5/20-1.1 (West 2020)), and the circuit court sentenced him to imprisonment for six years. He appeals on four grounds.
¶ 3 First, he claims the circuit court erred by allowing the State to present, as rebuttal evidence, some previously barred footage from a police officer's body-worn camera. We find no abuse of discretion in the admission of this footage.
¶ 4 Second, defendant alleges a violation of due process in that the circuit court failed to find, on its own initiative, a bona fide doubt of his fitness to stand trial and failed to order a behavioral clinical examination. Also, defendant claims his defense counsel rendered ineffective assistance by failing to move for such an examination. Because the record shows that defendant understood the nature and purpose of the proceedings against him and that he assisted in his defense, we find no duty by the court or defense counsel to have initiated fitness proceedings.
¶ 5 Third, defendant further asserts that defense counsel rendered ineffective assistance by failing to (1) move for the suppression of defendant's inculpatory statements, (2) investigate whether to raise an insanity defense, (3) move in limine to bar a squad-car video, (4) object to the prosecutor's cross-examination of defendant on the squad-car video, and (5) tender a jury instruction on the lesser included offense of arson. For various reasons, which we will later explain, we find some of these reputed omissions by defense counsel to be unsubstantiated by the record, and we find the remaining omissions to be within the wide range of reasonable professional assistance.
¶ 6 Fourth, defendant argues this case should be remanded for a hearing on his claim that the composition of the venire-specifically, an underrepresentation of African-Americans- deprived him of his right to be tried by a jury of his peers. We see no evidence of an intentional, systematic exclusion of African-Americans from the jury list nor any possibility of adducing such evidence.
¶ 7 Therefore, we affirm the judgment.
¶ 8 I. BACKGROUND
¶ 9 The State charged defendant with one count of aggravated arson (720 ILCS 5/20- 1.1 (West 2020)) in that on December 12, 2020, he knowingly set a fire in a Ramada Inn in Decatur, Illinois.
¶ 10 The circuit court appointed the Macon County public defender to represent defendant. On February 21, 2021, before trial, defense counsel told the circuit court, "There is a significant issue of mental health. [Defendant] was taken to the hospital after his arrest, and I wanted to get those records to see what they said about any mental issues at the moment." The court asked defense counsel if she "ha[d] a release from this person." "I'm working on it," defense counsel answered. The court was skeptical that, "even with a subpoena from a court," the hospital would release mental-health records without an authorization from the patient. Nevertheless, a subpoena duces tecum was issued to Decatur Memorial Hospital, and the court ordered that the scheduled date of a pretrial hearing, March 24, 2020, would "also be used for [the] date for [the] return of subpoenaed records."
¶ 11 On March 24, 2021, defense counsel again suggested that there were "[v]ery significant" "mental health issues" in defendant's case. She noted that, in response to the subpoena duces tecum, the hospital had "sent the Court a bill rather than the records." Defense counsel assured the court, "And I'm still working on getting those records." In order that she would have more time to obtain the records, she requested "an additional pretrial." The court scheduled another pretrial hearing for May 26, 2021.
¶ 12 On May 26, 2021, defense counsel requested a trial. The circuit court asked her:
"Aren't there potential mental health issues here, [Defense Counsel]?
[DEFENSE COUNSEL]: Yes, there are, Your Honor. And my client won't talk to me right now, so I wanted to set it for trial and send a letter and see if he'll converse with me. At that point, I have to file an addition-
THE COURT: You're going to do that. I don't want to file that on the date of trial.
[DEFENSE COUNSEL]: I don't either.
THE COURT: I've had that happen many times.
[DEFENSE COUNSEL]: I appreciate that, Judge. It will be in the next two to three weeks, but I will get that motion on file. I haven't been able to get the records I requested-
THE COURT: I get it.
[DEFENSE COUNSEL]: He won't talk to me."
¶ 13 On July 9, 2021, the circuit court held a final pretrial hearing, in which defense counsel and the prosecutor both announced they were ready for trial. Nothing was said about medical records. In her answer to discovery, defense counsel had disclosed no affirmative defense of insanity (nor any other affirmative defense).
¶ 14 On July 12, 2021, the day of trial, defense counsel filed a motion in limine, in which she requested the circuit court "to enter an Order barring the People from playing for the jury or other trier of fact the video captured by the body-worn camera of Officer Kimberly Chaney on December 12, 2020, at the Ramada Inn." Chaney, the motion explained, was a Decatur police officer who had "responded to the scene of a fire in the hotel room occupied by the Defendant." The audio-video camera on Chaney's uniform had recorded defendant's "erratic behavior and statements," showing him to be "agitated" at the time. The motion argued that the footage from the body-worn camera was irrelevant and that playing the footage to the jury "would only prejudice the trier of fact against the Defendant." Alternatively, the motion argued that if the footage had any probative value, it was "outweighed by the prejudicial effect to the Defendant."
¶ 15 Immediately before jury selection, the circuit court held a hearing on defendant's motion in limine. The prosecutor suggested, and defense counsel agreed, that before hearing arguments on the motion, the court should watch the video in chambers. The court did so, after which the parties made their arguments, beginning with defense counsel. She clarified she was objecting only to the part of the video where defendant was in the third-floor hallway after being removed from Room 305. Defense counsel gave two reasons for objecting to this hallway footage. First, in the hallway footage, "the officers make several statements about assumptions that an arson had occurred or that [defendant] had set the room on fire." The issue of fact of whether defendant committed arson was solely for the jury to decide, defense counsel argued, and it would be "improper to admit evidence where an officer had made that conclusion." Second, the hallway footage showed defendant "in a highly agitated state" and "fearful of the police." Defense counsel suggested that defendant's fearful "response could be, at least in part, explained by the events in other parts of the world in which an African-American man is seriously injured or killed in the hands of police." In any event, defense counsel insisted, defendant's "response to the officer where he believed his life was at risk is not relevant and is highly prejudicial to my client."
¶ 16 The prosecutor maintained, on the other hand, that the hallway footage was "highly relevant to the jury to understand the defendant's state of mind." Arson, the prosecutor reasoned, was "highly unusual, especially in a hotel setting," and the jury needed to understand that defendant-although he might be "sitting calmly" and "acting rationally" in the trial-was "off with his thinking" at the time of the incident. In short, the prosecutor claimed, the hallway footage "goes to the state of mind of why would someone light a fire in a hotel room." If, instead of being asked to take the police officers at their word, the jury saw for itself "how he's acting towards the police, they understand he's not thinking like a normal human being." The prosecutor granted that a statement by one of the police officers, in the hallway footage, that defendant had committed arson was irrelevant. In the prosecutor's view, though, a limiting instruction would cure any prejudice-which, the prosecutor argued, would be minimal anyway since it was already obvious, from the very existence of the criminal case, that the State considered defendant to be guilty of arson.
¶ 17 After counsel made those arguments, the circuit court recounted, from its own viewing of the video, that "Officer Chaney does make several statements that are assumptions." The court ruled that" [t]hose are barred because they are highly prejudicial." The court also barred, as irrelevant, the part of the video in which defendant "thought that one of the officers was pulling a gun out when he was putting his hand, it looked like, in his pocket or on his holster." The court decided, however, that the "short statement where [defendant] does say he barricaded the door could be allowed as is." Furthermore, the court thought it was "relevant for the jury to actually see [defendant] as he exits the hotel room so they can I.D. him."
¶ 18 The prosecutor promised to edit the footage from Chaney's body-worn camera accordingly. Given the circuit court's ruling on that particular video, the prosecutor sought confirmation that he was not barred from presenting another video, a squad car video, in which defendant likewise expressed fear that someone would shoot him. The court replied, "That's not the motion in limine in front of me." Defense counsel confirmed, "I'm not concerned about the squad car video."
¶ 19 After this hearing on defendant's motion in limine, the circuit court had the prospective jurors brought into the courtroom. Defense counsel objected. The court called a recess and heard the ground of her objection in chambers. Defense counsel explained that as the prospective jurors were led in,
"I realized there are no African-American men in our pool of potential jurors. Out of the [28] that were brought into the courtroom this morning, only [2] were African-American and they were both female. That constitutes an African-American representation of seven percent in our jury pool, which is certainly not representative of our community. And I believe that the racial make-up of the potential jury is prejudicial to my client."
¶ 20 The prosecutor responded that the "selection of potential jurors is supposed to be random from whoever shows up." Not knowing "how any of that stuff works mechanically," the prosecutor declined to "take a position one way or the other," instead choosing to "defer to the Court's better judgment."
¶ 21 The circuit court decided, "This was a random selection, and these were the [28] that were picked randomly, so we're going to go ahead and proceed with trial with these [28]." ¶ 22 After voir dire, one African-American was chosen to be a juror (according to a statement the prosecutor made later, in the posttrial hearing-a statement that was undisputed). The jurors were sworn, and the trial proceeded.
¶ 23 The parties stipulated that the hotel's owner, Pinakinkumar Patel, if called to testify, would state he was unacquainted with defendant and that he had never authorized anyone to start a fire in his hotel or to otherwise damage his property.
¶ 24 The State called Paul Hadfield, the hotel's night auditor. He testified that at approximately 2 a.m. on December 12, 2020, the fire alarm-which he described as bone-rattling in its loudness-sounded in the hotel. He looked at the security monitors, and the problem appeared to be on the third floor, the floor on which smoking was allowed. He went upstairs to investigate. The third-floor hallway was smoky, and water was seeping out of the doorframe of Room 305, suggesting that the fire-suppression system had been activated inside that room. He used his manager key to unlock the door to that room, and although the lock disengaged, he was unable to push the door open. Something seemed to be blocking the door from the inside. He pounded on the door and yelled, but there was no response. He telephoned 911. Police officers and firefighters arrived.
¶ 25 Chaney was one of the Decatur police officers who responded to Hadfield's call. In her testimony, Chaney identified People's exhibit No. 2 as footage from the audio-visual camera she was wearing on her uniform when, at approximately 2 a.m. on September 12, 2020, she arrived at the Ramada Inn. Without objection by defense counsel, the prosecutor played for the jury six minutes of People's exhibit No. 2, which the prosecutor had edited in accordance with the circuit court's ruling on the motion in limine.
¶ 26 The footage showed firefighters arriving at Room 305 and using a crowbar on the door of the hotel room. A firefighter got the door open wide enough to squeeze into the room. Chaney followed him, shining a flashlight. In the footage recorded inside the room, a mattress can be seen leaning near the door. Chaney testified that defendant (whom she identified in the courtroom) was standing on the box springs of the bed inside in the room and that he had a butane lighter in his hand. The footage from Chaney's body-worn camera portrayed the firefighter telling defendant to put down the lighter and also to put down a knife. Defendant complied. Chaney then ordered defendant to come out of the hotel room. As defendant approached the door, he told Chaney he did not want to die.
¶ 27 Additional footage from Chaney's body-worn camera showed defendant sitting on the floor of the hotel hallway and admitting to a male police officer that he had barricaded the door of his room. The footage also showed Hadfield later informing Chaney, downstairs in the hotel lobby, that defendant had been booked for only one night and that defendant had seemed lost and disoriented before getting his bearings. Further footage showed Chaney talking with a firefighter about an earlier interaction between defendant and a firefighter. Because of that interaction, a decision was made to take defendant to the hospital because he was complaining of chest pain or a rapid heartbeat-a symptom of drug use, Chaney and the firefighter surmised.
¶ 28 In addition to this footage from her body-worn camera, Chaney took photographs of the hotel room, which were admitted in evidence. According to her testimony, People's exhibit No. 5 showed the entryway sink with burn marks on the wall, a charred pillow, and other debris. People's exhibit No. 6 showed the mattress that had been moved away from inside the door so that police officers could enter the room. People's exhibit No. 8 showed the butane lighter and knife that defendant had been holding. Chaney admitted that defendant put down the knife as soon as the firefighter identified himself. She also admitted that the only part of the room that was charred was the area of the sink.
¶ 29 Another Decatur police officer, Gregory Clark, testified that when the hospital discharged defendant, he was tasked with picking defendant up from the hospital and taking him to the jail. Before the two of them left the hospital, Clark put defendant in handcuffs, telling him he was being charged with aggravated arson and that Clark knew nothing more. Clark's squad car was equipped with a video camera, and footage from that camera was admitted in evidence as People's exhibit No. 10. In this footage, defendant mumbled to himself for a while and then asked Clark to please tell him why. Clark answered that, again, he knew nothing other than that he was supposed to pick up defendant for aggravated arson. Defendant said he feared being murdered in jail, and he expressed a belief that everyone wanted to shoot him dead. He also remarked that he had "tripped out" and lit a fire. "What did I do, man?" he asked Clark over and over again.
¶ 30 After the prosecution concluded its case in chief, defendant chose to take the stand and testify in his own behalf. He testified substantially as follows. On December 11, 2020, he checked into the Ramada Inn in order to "get away from [his] house for a little bit" and "not to be found." At his request, he was given a smoking room, for which he paid a deposit of $50. People's exhibit No. 8 pictured "a torch," as he called it: a type of cigarette lighter he preferred because it continually shot out a flame that was not easily blown out, enabling him to light cigarettes as he was driving down the road on his motorcycle. That night, he brought along the torch to his hotel room only to light cigarettes, and he used it only for that purpose.
¶ 31 According to his testimony, all defendant did in the hotel room was smoke cigarettes in bed and drink alcohol. Eventually, he "passed out"-presumably on the bed, although he could not be sure exactly where it was he lost consciousness. He was jolted awake by the "sprinkler alarm system." It was "pitch dark" in the room, and he saw no fire. In addition to the blaring fire alarm, there was "a pounding at the door." In the mayhem and still "drunk," he "kind of freaked *** out." Thinking "someone was trying to break in," he "barricaded the door" with the mattress. "No one really identified themselves as a police officer or fireman or anything like that," defendant recounted. "I just heard pounding, so I grabbed a knife and I stood behind the mattress." Only when a firefighter entered the room and informed him there was a fire did defendant realize what really was happening, and then he dropped the knife onto the box springs. Defendant denied purposefully setting the fire in his hotel room.
¶ 32 On cross-examination, the prosecutor asked defendant, "[Y]our instinct when you're in a hotel and the sprinkler system is going off, your instinct when you hear pounding on the door is to barricade yourself in the room?" If someone had merely knocked on the door, defendant responded, he "probably would have answered it," but instead of knocking, "[i]t was more someone kicking the door in." The prosecutor then said:
"Q. Mr. Pearce, let's move forward to when you're being transported in that squad car and you make statements when you get to the jail, you're afraid someone is going to shoot you. Why did you make that statement?
A. Because part of the video that it didn't show was a police officer pulling his gun out and loading one into the chamber when I was in the hallway. Q. So you are afraid that a police officer was going to shoot you?
A. Yes, that's correct."
¶ 33 Defendant denied he was still intoxicated when, some eight hours after the incident at the hotel, Clark picked him up from the hospital, put him in the squad car, and took him to jail. Also, defendant insisted he "didn't have any problem with Officer Clark." It was just the police officer in the hotel hallway that defendant found to be concerning. As defendant put it on cross-examination, "I don't understand why that cop-that police officer loaded his gun when I was in the hallway."
¶ 34 The defense rested, and the circuit court asked the prosecutor if the State had any rebuttal evidence. The prosecutor requested a sidebar discussion. According to the trial transcript," [a]n off-the-record discussion was had." This off-the-record discussion was not transcribed. The proceedings then went back on the record, and the court dismissed the jury for the day. After the jury left, the court asked:
"THE COURT: Would you like to do what we discussed in the morning, Counsel?
[DEFENSE COUNSEL]: Yes, please.
[PROSECUTOR]: Judge, if I may, can I meet with you and [defense counsel] in your chambers and we go over the video just so I know exactly what we're allowed to show?
THE COURT: Are you wanting to do it tonight?
[PROSECUTOR]: Yes, because it's going to take me time to edit, and if I'm flying blind, I'm just guessing, so if you could direct me as to what part of the video you're allowing the jury to see, that will help me immensely. Otherwise, we're going to be really delayed in the morning.
THE COURT: That's fine. And then we'll start back here at 9 o'clock."
At this point, the transcript of July 12, 2021, ends. Thus, it appears that, in a discussion that was not transcribed, the court decided in general terms what part of the video in question the State would be allowed to present as rebuttal evidence. Presumably, also, in a further discussion that was not transcribed, the court, while watching the video, specified the footage the State would be allowed to present.
¶ 35 The next day, on July 13, 2021, the prosecutor played for the jury the hallway footage in People's exhibit No. 11, which was composed of four clips from Chaney's body-worn camera. This footage showed defendant leaning back against a wall in the third-floor hallway of the hotel and claiming ignorance of what had happened in his room. After handcuffing him, Chaney asked defendant for his name and age, and then she called the dispatcher's office to check on the name. Defendant refused to sit down, and he remarked to Chaney that his life had been saved-but for how long? he asked. He expressed fear that a male police officer, who was present in the hallway with Chaney, was going to shoot him. Chaney read the Miranda warnings to defendant (see Miranda v. Arizona, 384 U.S. 436 (1966)), and he acknowledged understanding them. Chaney then asked defendant if he had set his room on fire. Instead of answering that question, he told Chaney that some persons, whom he could not identify, had come to his door and that "it" had been going on for several months to a year. He denied that, until "now," he ever had mental-health problems. He admitted piling items against the door of his room to prevent anyone from entering. He apologized to Chaney for causing her to have to come to the hotel. He said he needed a doctor because he feared he was losing his mind.
¶ 36 In the final clip in People's exhibit No. 11, which also was footage from the third- floor hallway, defendant looked at a male police officer as he was walking to the other side of defendant. A moment later, defendant began repeatedly imploring this male police officer, "Don't do that man, don't do that." "Don't do what?" the officer asked. Defendant answered he did not want the officer to shoot him. The officer denied having any such intention. Defendant pleaded that he did not deserve to die. The officer assured defendant that no one was going to shoot him. Defendant then denied setting his hotel room on fire, and (for reasons that are unclear) he urged the officer to check the door handles. After playing People's exhibit No. 11, the State rested.
¶ 37 In his closing argument, the prosecutor contended that defendant suffered delusions of paranoia during his stay in the hotel and that he irrationally" believe[d] that barricading himself in the room and starting the fire [were] somehow going to protect him." The prosecutor noted that, in the squad-car ride from the hospital to the jail, defendant explicitly drew a connection between his psychological disturbance and the arson by admitting he had "freak[ed] out" and lit a fire. On the strength of that admission, the prosecutor maintained, the jury should find defendant guilty of aggravated arson.
¶ 38 Defense counsel contested the prosecutor's interpretation of defendant's statement in the squad car. "What [defendant] said in that squad car video was not a confession," she argued. "It was his statement of, and what I heard was, [']I was tripping out when I lit a fire and now they want to kill me.[']" Asking the jury to set aside the question of whether defendant's fears were rational, defense counsel described defendant as "an African-American man living in this time in America" who had "a fear that a police officer might harm him." In other words, defendant was afraid, at the time, that the circumstances of the fire would be misconstrued against him and that vengeance would be summarily taken. What really happened in the hotel room, defense counsel suggested, was that defendant fell asleep while smoking in bed, accidentally set his pillow on fire, and "threw that pillow toward the only source of water in the room, and that was the sink, and he missed."
¶ 39 In his rebuttal closing argument, the prosecutor replayed video clips to emphasize points he previously made, namely, that defendant had been in "a paranoid state of mind" and that he had "lit that fire because he's freaking out."
¶ 40 On July 13, 2021, after deliberating for about two and a half hours, the jury found defendant guilty of aggravated arson.
¶ 41 On August 24, 2021-42 days after the verdict-defense counsel filed a posttrial motion, which sought a judgment notwithstanding the verdict or, alternatively, a new trial. See 725 ILCS 5/116-1 (b) (West 2020) (providing that "[a] written motion for a new trial shall be filed by the defendant within 30 days following the entry of a finding or the return of a verdict"); but see People v. Talach, 114 Ill.App.3d 813, 818 (1983) (finding "no jurisdictional bar to a trial court entertaining a post-trial motion not timely filed within 30 days *** but prior to imposition of sentence"); People v. Gauwitz, 80 Ill.App.3d 362, 367 (1980) (holding that by not moving to strike an untimely posttrial motion but, instead, participating in arguments on the substantive merits of the motion, the State forfeited any objection to the motion's untimeliness). The posttrial motion raised three contentions. First, the motion argued that
"[t]he Court's decision to allow the video evidence of Defendant's behavior after being removed from his hotel room on December 12, 2020[,] was in error because:
i. It did not rebut or contradict evidence presented by the defense, and
ii. It was more prejudicial than probative."
Second, the motion argued that the verdict lacked support in the evidence. Third, because the composition of the jury was unrepresentative of the community, the motion argued a denial of defendant's sixth-amendment right to a trial by a jury of his peers. See U.S. Const., amend. VI. To support the third argument, the motion presented census data showing that the African-American population in Macon County was 18%. By contrast, only two African-American prospective jurors were in the venire.
¶ 42 On September 17, 2021, immediately before the sentencing hearing, the circuit court held a hearing on defendant's posttrial motion. Defense counsel stated:
" [J]ust for clarification of the record, I just wanted to put into the record, 'cause I don't think we made a good record at the time of trial, that the Court initially had ruled against the admission of certain video evidence.
After [defendant] testified we had a sidebar in which it was discussed and the Court allowed that to be presented over my objection."
Defense counsel did not specify what the ground of her contemporaneous objection was, but she now argued that the video evidence "was highly prejudicial against my client" and that it "did not, in fact, rebut anything that my client testified to." Defense counsel said that her primary argument, however, was "the failure to have a representative of his peer [sic] from which a jury panel could be selected."
¶ 43 The prosecutor disagreed with the posttrial motion in all respects. He argued that by "ma[king] claims, on the record, that the police were trying to shoot him," defendant had "opened the door about his [sic] wide as you could open it." As for the jury selection, the prosecutor seemed to recall "an African American on the jury," and the prosecutor maintained that "the procedure is properly done" if "it's by chance."
¶ 44 The circuit court reiterated that the selection of prospective jurors was random. The court remarked that "nothing about this case was any different than any other case I've been involved in." As the court recalled, there was "at least one African American on the *** jury" in the present case. As for the rebuttal video, the court agreed with the prosecutor that the "problem had been opened by the defendant and the jury needed to see what happened before and during when he claimed that the officer pulled a gun on him." Therefore, the court denied the posttrial motion.
¶ 45 In the ensuing sentencing hearing, the prosecutor presented an affidavit in which a police officer described another incident involving defendant. The affidavit stated essentially as follows. On January 1, 2020, the police were called to another hotel. A police officer heard defendant calling for help from inside a hotel room. Defendant told the police officer that people had been shooting at him through the back window and that he had returned fire. The police officer recovered from defendant a pistol and five spent shell casings. The wall in the hotel room was perforated by bullet holes-but the back window to which defendant had referred did not exist.
¶ 46 Before imposing the sentence, the circuit court noted it was giving little weight to the police officer's affidavit. The court counted, as mitigating factors, that defendant had a minimal criminal history and that he was 50 years old. The court found an aggravating factor in that setting a fire in a hotel occupied by other guests had threatened serious harm. Weighing the mitigating factors against the aggravating factors, the court decided on a sentence of imprisonment for six years. Defendant never moved for reconsideration of the sentence.
¶ 47 This appeal followed.
¶ 48 II. ANALYSIS
¶ 49 A. The Admissibility of People's Exhibit No. 11 as Rebuttal Evidence
¶ 50 Defendant contends that the circuit court erred by allowing the State to present People's exhibit No. 11 as rebuttal evidence. This exhibit was the previously barred footage that Chaney's body-worn camera had recorded in the third-floor hallway of the hotel. In this exhibit, defendant was shown panicking at the sight of a male police officer touching his holster. Chaney was shown handcuffing defendant and reading him the Miranda warnings. Defendant was shown expressing to Chaney his belief that people were out to get him. All of that footage, defendant maintains, was inadmissible as rebuttal evidence. On the authority of People v. McGhee, 20 Ill.App.3d 915, 922 (1974), he argues that although "[a] prosecutor may present rebuttal evidence to contradict a defendant's testimony on a material issue," such evidence is inadmissible to contradict a defendant's testimony "on a collateral or immaterial matter." Citing People v. Steptore, 51 Ill.2d 208, 217 (1972), defendant explains that evidence is "collateral" if, instead of being relevant to a substantive issue in the case, the only purpose of the evidence is to contradict a witness. In defendant's view, People's exhibit No. 11 was collateral, that is, the exhibit had nothing to do with any issue in the case, and the only purpose of the exhibit was to contradict his testimony that a police officer had unholstered a pistol in the hallway and had chambered a round. Insomuch as People's exhibit No. 11 had any relevance, defendant argues, the exhibit was "highly prejudicial to his defense."
¶ 51 The State retorts that by accusing the police of committing an outrage and by attacking the prosecution's integrity, defendant opened the door to a fair rebuttal. All the prosecutor did on cross-examination was ask defendant about the fear he had expressed, in the squad-car video, that someone would shoot him in jail. Defendant answered by accusing (1) a police officer of "pulling his gun out and loading one into the chamber when I was in the hallway" and (2) the prosecution of deceptively editing out the footage in which the police officer menaced defendant in this manner. According to the State, "[defendant's statement opened the door to the use of the video evidence from the hallway to challenge defendant's credibility."
¶ 52 Absent a transcript of the sidebar conference, the record does not appear to reveal the contemporaneous objection against which this opening-the-door rationale was deployed. The record (specifically, the transcript of the posttrial hearing) reveals that defense counsel made some kind of contemporaneous objection to People's exhibit No. 11, but it is unclear what the stated ground of the contemporaneous objection was. Even so, grounds of objection were set forth in the motion in limine and in the posttrial motion. According to case law, all that is necessary to prevent a forfeiture is that the defense raise the objection either in a motion in limine or at trial and reiterate the objection in a posttrial motion. People v. Minter, 2015 IL App (1st) 120958, ¶ 54. The posttrial motion, like the motion in limine, specified two grounds of objection to the footage in People's exhibit No. 11: (1) this evidence "did not rebut or contradict evidence presented by the defense," and (2) this evidence "was more prejudicial than probative." Any other ground of objection- including the ground that People's exhibit No. 11 was "collateral matter"-is forfeited. See id.
¶ 53 Let us take the two preserved objections one at a time. The first objection was that People's exhibit No. 11, which the State presented in its case in rebuttal, "did not rebut or contradict any evidence presented by the defense." The Illinois Rules of Evidence appear to say nothing, specifically, about the case in rebuttal. Nevertheless, decisions postdating the issuance of the Illinois Rules of Evidence continue to hold, "Evidence that tends to explain, repel, contradict[,] or disprove the defendant's testimony is generally admissible [citation] and generally found to be proper rebuttal testimony [citation]." (Internal quotation marks omitted.) People v. Cross, 2019 IL App (1st) 162108, ¶ 138. "[T]he admission of rebuttal testimony is generally within the sound discretion of the trial court and is reviewed only for an abuse of discretion." Id. ¶ 136. Under that deferential standard of review, our question should be this: Would it be within the range of reasonableness to conclude that People's Exhibit No. 11 contradicted or disproved defendant's testimony on cross-examination? See id. ¶ 137. The answer is yes. Defendant testified," [P]art of the video that it didn't show was a police officer pulling his gun out and loading one into the chamber when I was in the hallway." In People's exhibit No. 11, which was the rest of the hallway video, no police officer was seen unholstering his pistol and chambering a round. Therefore, arguably, this exhibit tended to disprove defendant's testimony that a police officer had done so.
¶ 54 The second preserved objection was that People's exhibit No. 11 "was more prejudicial than probative." Strictly speaking, this objection presented a false dichotomy. Generally, the more probative the State's evidence is, the more prejudicial it is to the defense. "Virtually all evidence is prejudicial or it isn't material." (Internal quotation marks omitted.) People v. Parker, 335 Ill.App.3d 474, 488 (2002).
¶ 55 It is true that evidence, though relevant, is objectionable if "its probative value is substantially outweighed by the danger of unfair prejudice." (Emphasis added.) Ill. R. Evid. 403 (eff. Jan. 1, 2011). "Prejudice" and "unfair prejudice," however, are different. "Unfair prejudice" is a term of art meaning "the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." (Internal quotation marks omitted.) Parker, 335 Ill.App.3d at 487-88. Defendant complains that "[t]he rebuttal footage, and the State's improper argument, created a risk that the jury convicted [defendant] because of the State's speculation that he was mentally ill."
¶ 56 This complaint could be fairly met with a twofold response. First, as the State argues, defendant opened the door to the rebuttal footage. In a reasonably defensible exercise of discretion (see People v. Manning, 182 Ill.2d 193, 217 (1998)), the circuit court decided that the serious allegations that defendant made, on cross-examination, against the Decatur police and the state's attorney's office challenged the credibility of the prosecution and triggered the doctrine of curative admissibility. The supreme court has concisely summed up that doctrine as follows: "If A opens up an issue and B will be prejudiced unless B can introduce contradictory or explanatory evidence, then B will be permitted to introduce such evidence, even though it might otherwise be improper." Id. at 216. Arguably, showing the rest of the hallway video was necessary to "eradicate undue prejudicial inferences which might otherwise [have] ensue[d]" from defendant's testimony. (Emphasis in original and internal quotation marks omitted.) Id. at 217.
¶ 57 Second, insomuch as People's exhibit No. 11 showed defendant to be, to use the prosecutor's phrase, not in a "normal thinking state of mind," the exhibit arguably had relevance and was not "otherwise improper." Id. at 216. Granted, as defendant points out, "[t]here was no medical evidence in the record, nor did the defense argue, that [defendant] was mentally ill at the time of the fire." But it was defendant himself who, in the squad car video, at least impliedly drew a causal connection between his experience of "freaking out" and his act of lighting the fire. Regardless of whether his emotional disturbance met a definition in the Diagnostic and Statistical Manual of Mental Disorders, it caused him, by his own admission, to light the fire in his hotel room. This admission imparted relevance to the evidence in People's exhibit No. 11 that defendant appeared to be, at the time, emotionally disturbed. For those two reasons, we find no abuse of discretion in the admission of People's exhibit No. 11. See Cross, 2019 IL App (1st) 162108, ¶ 136.
¶ 58 B. Defendant's Fitness to Stand Trial
¶ 59 Defendant claims that, given (1) the paranoiac statements he made in the third-floor hallway of the hotel and in the squad car, (2) his hospitalization immediately after his arrest, and (3) his delusional testimony that a police officer had menacingly pulled out a pistol and chambered a round, the circuit court should have found, on its own initiative, a bona fide doubt of defendant's fitness to stand trial and should have ordered a clinical behavioral examination. Acknowledging the problem of forfeiture resulting from the omission of this claim in the proceedings below, defendant invokes the doctrine of plain error. He maintains that the neglect to hold fitness proceedings deprived him of a substantial right to due process, calling for a relaxation of forfeiture principles. Alternatively, he accuses his defense counsel of rendering ineffective assistance by failing to request a fitness examination and by failing to follow through with her resolution to obtain defendant's medical records from Decatur Memorial Hospital.
¶ 60 The State disputes that reasonable representation required a motion for a fitness examination. Notwithstanding the bizarreness of defendant's behavior in the hotel and in the squad car, the capacity that counts, the State argues, is the capacity that defendant had in the trial. He was presumed to be fit to stand trial. Defense counsel could have rebutted that presumption only if defense counsel had evidence that, "because of his mental or physical condition," defendant was "unable to understand the nature and purpose of the proceedings against him or to assist in his defense." 725 ILCS 5/104-10 (West 2020). Just because defense counsel resolved to investigate defendant's mental health, the State cautions, it does not follow that defendant in fact had the inabilities described in section 104-10. Like defense counsel, the circuit court had opportunities to observe defendant, and in the State's view, the record affords no basis for discounting the court's observations and finding bona fide doubt as a matter of law. Thus, according to the State, there was no error at all in the omission of fitness proceedings, let alone plain error.
¶ 61 We note that, under case law, the plainness element of plain error and the deficient-performance element of ineffective assistance rise or fall together. See People v. Carr-McKnight, 2020 IL App (1st) 163245, ¶ 93 (holding that "because there was no clear or obvious error, there cannot be ineffective assistance of counsel"); People v. Banks, 2021 IL App (4th) 180838-U, ¶ 56 ("find[ing] no clear or obvious error and, hence, no ineffective assistance"). Therefore, in considering a dual claim of plain error and ineffective assistance, a logical first step would be to look for a clear or obvious error. See People v. Clayton, 2019 IL App (3d) 170315, ¶ 23. It is less than clear or obvious that the circuit court should have found a bona fide doubt of defendant's fitness. Granted, in the incidents outside the courtroom, defendant could be perceived as suffering from paranoid delusions. Even so, sanity at the time of the offense and fitness for trial "concern different time frames and different standards." People v. Burnett, 2016 IL App (1st) 141033, ¶ 48. In other words, "[t]he issue is not one of mental illness or sanity but whether defendant could understand the proceedings against him and cooperate in his defense." People v. Weeks, 393 Ill.App.3d 1004, 1012 (2009). "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." (Internal quotation marks omitted.) Id.
¶ 62 Admittedly, in his testimony in the trial, defendant reaffirmed his apparent delusion that a police officer drew a pistol in the hotel hallway and chambered a round. Nevertheless, it would strike us as an exaggeration to maintain that, just because defendant was factually wrong in that respect, he was "unable to understand the nature and purpose of the proceedings against him or to assist in his defense." 725 ILCS 5/104-10 (West 2020). After all, defendant was on record stating he understood the charge and the potential punishment. At the beginning of the trial, after informing him of the charged offense and the statutory range of punishment, the circuit court asked him if he understood, and he answered, "Yes, Your Honor." Also, defendant gave testimony that was, to a large extent, to his own advantage. He presented an account of accidentally setting a fire by smoking in bed and of waking up, in a drunken panic, to a blaring fire alarm and violent pounding on his door. This account by him appeared calculated to neutralize the charge of aggravated arson. Defendant's performance at trial, though imperfect, suggested an understanding of what was at stake in the proceedings and some ability to help with the defense. See People v. Moore, 189 Ill.2d 521, 536 (2000). Considering defendant's mostly rational participation in the trial, we find no clear or obvious error-and, therefore, no deficient performance by defense counsel-in the omission of fitness proceedings. See Carr-McKnight, 2020 IL App (1st) 163245, ¶ 93; Banks, 2021 IL App (4th) 180838-U, ¶ 56.
¶ 63 C. Other Theories of Ineffective Assistance
¶ 64 1. Failure to File a Motion to Suppress Defendant s Inculpatory Statements
¶ 65 Defendant asserts, "There was no medical evidence in the record *** that [defendant] was mentally ill at the time of the fire." On the other hand, defendant claims that mental illness and intoxication incapacitated him from understanding the Miranda warnings that Chaney read to him. He accuses defense counsel of rendering ineffective assistance by failing to file a motion to suppress the inculpatory statements that defendant made after the Miranda warnings. The theory of such a motion would have been that, before making the inculpatory statements, defendant did not, and could not, knowingly and intelligently waive his Miranda rights. In support of that theory, he cites People v. Nau, 167 Ill.App.3d 338, 346-47 (1988), and People v. Roy, 49 Ill.2d 113, 114-16 (1971).
¶ 66 The State maintains that because defendant has "raised this issue for the first time on appeal and the record does not provide defense counsel the opportunity to respond to defendant's claims," we "should decline to address the issue of ineffective assistance of counsel." The Illinois Supreme Court has held, however, that "defendants are required to raise ineffective assistance of counsel claims on direct review if apparent on the record." People v. Veach, 2017 IL 120649, ¶ 46. That requirement is not conditional on defense counsel's having received an opportunity to tell his or her side of the story. Rather, if "the record *** [is] sufficient to resolve [the] defendant's ineffective assistance of counsel claim on direct review," the defendant, on pain of forfeiting the claim, must raise it on direct review. Id. ¶ 50. According to defendant, his mental illness and intoxication at the time of his arrest were facts borne out by the record. He argues that, under Roy and Nau, there was a reasonable probability that those facts would have resulted in the suppression of his post-Miranda statements and, in turn, an acquittal-if only defense counsel had filed a motion for suppression. See People v. Utley, 2019 IL App (1st) 152112, ¶ 55.
¶ 67 The State maintains that a motion for suppression would have been futile because the only inculpatory statement that defendant made was in the squad car when he admitted- spontaneously and without interrogation-that he "freaked out" and lit a fire. Miranda, the State correctly points out, excludes only statements that are the product of custodial interrogation. The State quotes from People v. Lowe, 122 Ill.App.2d 197, 205 (1970): "In Miranda, *** it is expressly stated that the rule of exclusion of defendant's statements does not apply to voluntary statements made without questioning initiated by law enforcement officials."
¶ 68 In the hallway of the hotel, however, after he was placed under arrest and was given the Miranda warnings, defendant uttered responses to interrogation, inculpatory or not. "Unless [the Miranda] warnings are given and the accused voluntarily, knowingly[,] and intelligently waives these rights, the defendant's response should be suppressed" (emphasis added) (People v. Tuson, 2016 IL App (3d) 130861, ¶ 22)-not just an inculpatory response. See also People v. Soto, 2017 IL App (1st) 140893, ¶ 68 (holding that "[a] defendant's statement to authorities should be suppressed unless he voluntarily, knowingly, and intelligently waived his Miranda rights" (emphasis added)).
¶ 69 A decision by defense counsel not to file a motion for suppression "is generally considered to be a matter of trial strategy, entitled to great deference." Utley, 2019 IL App (1st) 152112, ¶ 55. "To overcome the presumption of trial strategy, the defendant must demonstrate a reasonable probability that the motion would have been granted and that the outcome of the trial would have been different." (Internal quotation marks omitted) Id. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. The question, then, is whether, in the light of Nau and Roy, the mental disturbance and intoxication under which defendant apparently labored at the time of the Miranda warnings undermine confidence in the conviction.
¶ 70 The analysis in Nau seems out of step with more recent case law. In Nau, the appellate court affirmed the suppression of inculpatory statements because two psychological experts, whom the circuit court had the right to believe, "were consistent in determining that [the] defendant was insane at the precise moment he supposedly waived his right to remain silent." Nau, 167 Ill.App.3d at 349. One of the psychological experts, the appellate court noted, had "indicated that[,] [at the time of the waiver, the] defendant was not fully able to make a sound judgment regarding his own best interests." Id. Although Nau may well be correct in its result, it seems doubtful that, under more recent case law, the knowingness of a Miranda waiver would depend on whether the waiving individual had "sound judgment" or whether the vague label of "insane" could have been attached to him or her. Nowadays, the knowingness of a Miranda waiver means not judgment ability but linguistic comprehension of the warnings. A defendant "must have 'the ability to understand the very words used in the warnings,'" and the soundness of the defendant's judgment regarding his or her own best interests is beside the point. People v. Goins, 2013 IL App (1st) 113201, ¶ 50 (quoting People v. Bernasco, 138 Ill.2d 349, 363 (1990)). To knowingly give up rights, the defendant must understand the description of the rights, but the defendant "need not have 'the ability to understand far-reaching legal and strategic effects of waiving one's rights.' Id. (quoting Bernasco, 138 Ill.2d at 363). Therefore, setting aside the distinguishability of Nau in that, in the present case, no psychological expert opined that defendant was "insane," defense counsel could have reasonably considered the rationale of Nau to have been superseded, making reliance on that case ill-advised.
¶ 71 As for Roy, it is distinguishable because the defendant in that case was so drunk he had obvious difficulty following the Miranda warnings. Also, he never acknowledged understanding the warnings. To quote from Roy:
"One officer testified that after these warnings the defendant 'kept on saying, "What?", and that defendant would reply, "Yeah." This officer testified that there was a strong odor of alcohol on defendant's breath, that the defendant was not staggering but that he was swaying a little bit while he was standing there. He also testified that the defendant would stop them every time they went to say something and that the defendant was very confused. In the midst of the officer's testimony in reply to a question of how many times he had to repeat the advisements, the officer said, 'I can't tell you how many times we had to ***.' The other officer testified that he advised defendant of his Miranda rights. On cross-examination he was asked how the defendant appeared to be at the time of his arrest. The officer replied, 'Drunk.' Further examination along this line developed that there was a strong odor of alcohol on defendant's breath, that the defendant appeared intoxicated and that he was unsteady. The officer testified that defendant never said that he understood the warnings." Roy 49 Ill.2d at 114-15.
In contrast to Roy, the present case appears to contain no evidence that when Chaney read him the Miranda warnings, defendant had a strong odor of alcohol on his breath, was unsteady on his feet, or needed the warnings repeated. Unlike the arrestee in Roy, defendant acknowledged he understood the Miranda warnings, and as defendant himself says elsewhere in his brief, "very little evidence showed intoxication." To file a motion for suppression on the theory that the Miranda waiver was unknowing, defense counsel would have had to provide a plausible answer to the question of why defendant told Chaney he understood the Miranda warnings if in fact he did not understand them. Because effective assistance does not entail filing futile motions, we find no ineffective assistance in the omission of a motion for suppression. See People v. Hartfield, 2022 IL 126729, ¶ 38.
¶ 72 2. Failure to Investigate Whether to Raise an Insanity Defense or to Seek an Alternative Verdict of Guilty But Mentally Ill.
¶ 73 Defendant alleges his defense counsel rendered ineffective assistance by "failing to investigate whether to raise an insanity defense or to seek an alternative guilty but mentally ill verdict." According to defendant, "[t]he record here indicates that defense counsel did not investigate [defendant's] mental health history to make an informed decision on whether to raise insanity or seek an alternative verdict of guilty but mentally ill." Defendant continues, "During pretrial proceedings, counsel told the court that there was a 'significant issue of mental health,' and sought medical records. [Citations.] Inexplicably, however, counsel never received them and seemingly dropped her request for those records. [Citations.]"
¶ 74 According to the State, on the other hand, the record supports an inference that, despite previous noncooperation by defendant, defense counsel finally was able to persuade him to talk with her. The State so infers because on July 9, 2021, defense counsel announced she was ready for trial. This announced readiness for trial, the State suggests, should be presumed to imply a completed investigation of defendant's mental health history and of the possible merits of an insanity defense.
¶ 75 The record does not appear to reveal, one way or the other, whether defense counsel ultimately succeeded in obtaining defendant's mental health records (if, indeed, any such records existed). We know that on February 21, March 24, and May 26, 2021, defense counsel informed the circuit court that she was trying to obtain defendant's mental health records but that, thus far, she had been stymied by his refusal to cooperate. But the record does not appear to reveal what happened between May 26, 2021, and July 9, 2021, which was the date when defense counsel announced readiness for trial. It may be that, during that intervening period, defense counsel obtained the mental health records or, alternatively, found that none existed. The defendant has the burden of proving both elements of ineffective assistance, namely, that" (1) counsel's performance was objectively unreasonable under prevailing professional norms and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." People v. Jackson, 2022 IL App (4th) 190710-U, ¶ 37. Defendant has not proven, from the record, the first of those propositions-in this context, that defense counsel failed to perform a reasonable investigation of defendant's mental health history and of the potential for an insanity defense. "It is possible that counsel did investigate and received information that would not support an insanity defense." People v. Ressa, 2019 IL App (2d) 170439, ¶ 25.
¶ 76 To be sure, the psychological symptoms that defendant displayed at the time of the incident-the bizarre behavior and the paranoid delusions-would have been ascertainable just from talking with the police and watching the videos. But those symptoms would not have been enough for an insanity defense. As defendant discusses in his brief, an insanity defense would have required proof, by clear and convincing evidence that, at the time of the offense, a "mental disease or mental defect" deprived him of the "substantial capacity to appreciate the criminality of his conduct" (720 ILCS 5/6-2 (a) (West 2020)). See People v. Welling, 2021 IL App (2d) 170944, ¶ 48. "Bizarre behavior or delusional statements do not compel an insanity finding as a defendant may suffer mental illness without being legally insane." People v. McCullum, 386 Ill.App.3d 495, 504 (2008). Just because defendant barricaded the door of his hotel room with a mattress and believed that people were out to get him, it does not necessarily follow that he lacked the capacity to appreciate the criminality of setting the room on fire. Defendant faults his defense counsel for failing to seek an independent medical examination to confirm whether defendant had been capable of appreciating the criminality of his conduct. That criticism, alone, does not establish a reasonable probability that a medical examination would have made a difference in the outcome of the case. See Jackson, 2022 IL App (4th) 190710-U, ¶ 37. "Normally, a failure to investigate will not support a claim of ineffective assistance of counsel unless defendant on appeal can show with some specificity what additional evidence his trial counsel could have produced from the investigation." People v. Young, 220 Ill.App.3d 98, 109 (1991). The grounds for an insanity defense remain unsubstantiated and speculative.
¶ 77 Defendant points out that, even if an insanity defense would have been unsuccessful, raising that affirmative defense would have given the jury an opportunity to find alternatively, by a preponderance of the evidence, that defendant was guilty but mentally ill. See 720 ILCS 5/6-2(c), (d) (West 2020); People v. Wood, 2014 IL App (1st) 121408, ¶ 62. "Under Illinois law, a defendant must raise the defense of insanity in order to be eligible for a [guilty-but-mentally-ill] conviction." Wood, 2014 IL App (1st) 121408, ¶ 62.
¶ 78 The trouble is, unless defense counsel had evidence of defendant's "substantial [in]capacity," at the time, "to appreciate the criminality of his conduct" (720 ILCS 5/6-2(a) (West 2020)), asserting an affirmative defense of insanity would have been ethically problematic. See Wood, 2014 IL App (1st) 121408, ¶ 77. As we have discussed, the record does not appear to contain any evidence that defendant's emotional disturbance, whatever its nature, prevented him from understanding the criminality of setting a hotel on fire. We echo the First District in Wood: "We cannot conclude that defense counsel's failure to pursue a defense for which he lacked an adequate factual support and legal basis constitutes ineffective assistance." Id.
¶ 79 Besides, a competent defense counsel might have regarded an insanity defense as strategically unwise. Such a defense might have signaled that the accident theory was shaky enough to require an even shakier fallback position. The argument would have been: defendant set the fire accidentally, but even if he set the fire on purpose, he was unable to substantially appreciate the criminality of doing so. To a jury, that argument could have sounded like waffling. As defendant acknowledges in his brief, the decision whether to raise an insanity defense is a matter of trial strategy. See People v. Cundiff 322 Ill.App.3d 426, 435 (2001). "Judicial scrutiny of counsel's performance is highly deferential, and counsel's trial strategy is given a strong presumption of reasonable professional assistance." People v. Brown, 2017 IL App (1st) 142197, ¶ 47; see also Cundiff, 322 Ill.App.3d at 435. Defendant has failed to rebut the strong presumption that refraining from asserting an insanity defense was professionally reasonable.
¶ 80 3. Failing to Move In Limine to Exclude the Squad Car Video and to Object to the Prosecutor s Cross-Examination of Defendant on Statements He Made in that Video
¶ 81 a. Failing to Include the Squad Car Video in the Motion In Limine
¶ 82 Defendant claims that defense counsel rendered ineffective assistance by excluding the squad car video from the scope of the motion in limine. This exclusion was illogical, in defendant's view, considering that the squad car video was even more damaging than the hallway video. In the squad car video, defendant "made an inculpatory statement to the effect that he 'freaked out' and set the fire in the room."
¶ 83 The State makes no counterargument on this issue, but the answer to defendant's argument is inherent in the argument itself. If, as defendant argues, he made a damaging inculpatory statement in the squad car video, the squad car video was relevant and admissible for that very reason. "All relevant evidence is admissible, except as otherwise provided by law," and an inculpatory statement is relevant and, hence, admissible. Ill. R. Evid. 402 (eff. Jan. 1, 2011). Moving to exclude the squad car video in its entirety, as defendant contends that defense counsel should have done, would have been an act of futility from the perspective of an objectively correct decisionmaker. Because a defendant is not entitled to "the luck of a lawless decisionmaker" (Strickland v. Washington, 466 U.S. 668, 695 (1984)), we assume that if defense counsel had moved to bar the squad car video on the ground of irrelevancy, the motion would have been denied. Again, "[effective assistance does not entail the filing of unmeritorious motions." People v. Thompson, 2021 IL App (4th) 180830-U, ¶ 3.
¶ 84 b. Failing to Object When, on Cross-Examination, the Prosecutor
Asked Defendant Why He Thought He Would Be Shot in Jail
¶ 85 In his cross-examination of defendant, the prosecutor asked defendant why he remarked, in the squad car, that he was afraid someone would shoot him in jail. Defendant asserts that defense counsel's failure to object to that question amounted to ineffective assistance. "[T]he prosecutor's question was beyond the scope of [the] direct examination," defendant argues, and "had counsel objected and had that objection been sustained, the State would have had no argument that [defendant] opened the door to previously-barred footage from Chaney's body-worn camera."
¶ 86 Again, the State fails to offer any response, but we are unconvinced that all reasonable persons would regard the prosecutor's question as beyond the scope of the direct examination. On direct examination, defendant testified that he had rented the hotel room in order to "get away from [his] house for a little bit" and "not to be found." He further testified, on direct examination, that when he heard a pounding on the door of his hotel room as the fire alarm was going off and the sprinkler system was raining upon him, his first assumption was that "someone was trying to break in[to] his room"-presumably, to hurt him. Arguably, an at least implied theme of defendant's direct examination was that someone was out to get him. On cross-examination, the prosecutor followed up on that theme by asking defendant why he thought someone would shoot him in jail.
¶ 87 In any event, under Illinois Rule of Evidence 611(b) (eff. Oct. 15, 2015), cross- examination need not be limited to the scope of the direct examination. The rule provides, "Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness, which include matters within the knowledge of the witness that explain, qualify, discredit[,] or destroy the witness's direct testimony." (Emphasis added.) Id. Arguably, if without any reasonable basis, a witness thought he was in danger of being shot while in jail, such irrationality would "affect the credibility of the witness." Id. For those reasons, then, it was "within the wide range of reasonable professional assistance" to refrain from objecting to the prosecutor's cross-examination. People v. Enis, 194 Ill.2d 361, 377 (2000).
¶ 88 4. Failing to Request a Jury Instruction on the Lesser Included Offense of Arson
¶ 89 Defendant contends that defense counsel rendered ineffective assistance by failing to tender a jury instruction on the lesser included offense of arson (720 ILCS 5/20-1 (a) (West 2020)). The answer to that contention is simple: whether to tender a jury instruction on a lesser included offense is a decision that belongs to the defendant alone (People v. Brocksmith, 162 Ill.2d 224, 229 (1994)), and if no lesser-included offense instruction is requested by the defendant or defense counsel, "it may be assumed that the decision not to tender was defendant's, after due consultation with counsel" (People v. Medina, 221 Ill.2d 394, 409-10 (2006)). Absent any indication to the contrary in the record, we presume it was defendant's decision, rather than defense counsel's decision, not to tender a jury instruction on the lesser included offense of arson. See id.
¶ 90 D. Defendant's Constitutional Right to Be Tried by a Jury of His Peers
¶ 91 Defendant urges us to remand this case for a hearing on his claim that the composition of the venire denied him his right under the sixth and fourteenth amendments "to be tried by a jury that is drawn from a fair cross-section of the community." U.S. Const., amends. VI, XIV. Citing census data, defendant observes that "African-Americans were under-represented in the venire." Of the 28 prospective jurors, only 2 were African-Americans, both women. Thus, the African-American representation in the venire was only 7%. By contrast, according to census data that defendant attached to his posttrial motion, 17.8% of the population of Macon County was African-American. Thus, defendant complains, there was a more than 10% disparity between the percentage of African-Americans in the community-"prima facie evidence of under-representation in the jury pool."
¶ 92 According to defendant's own exposition of the law, however, underrepresentation was not the only fact he had to prove. An accused, he explains, must prove three elements to "make[] a prima facie showing that the fair cross-section requirement was violated." Defendant quotes the three elements from People v. Peeples, 155 Ill.2d 422, 450 (1993):
"(1) the group allegedly excluded is a distinctive group in the community; (2) the underrepresentation of that group in venires, from which juries are selected, is not
fair and reasonable in relation to the number of such persons in the community; and
(3) the under-representation is due to the systematic exclusion of that distinctive group in the jury selection process."
The State does not dispute that defendant proved the first two propositions. In other words, the State concedes that "African[-]American men are a distinct group" in the community (see id. at 451) and that the proportion of African-American men in the venire was "not fairly and reasonably related to the number of such persons in the community." (In his brief, defendant seems concerned with the representation of African-Americans generally, not with the representation of genders within the African-American group.) The gap in defendant's prima facie case, the State argues, is the third proposition: defendant presented no evidence that "the absence of African-American men was *** due to their systematic exclusion from the jury pool."
¶ 93 Defendant admits that defense counsel "did not present information to the court regarding the jury selection process that supported systematic exclusion." For two reasons, however, he contends we should remand the case so that this evidentiary gap may be filled. First, he accuses Judge Bowers of improperly relying on her extrajudicial personal knowledge. When defense counsel first raised the underrepresentation, Judge Bowers ruled, "This was a random selection, and these were the [28] that were picked randomly, so we're going to go ahead and proceed with trial with these [28]." Later, in the posttrial hearing, Judge Bowers noted, "[A]s for the jury selection, nothing about this case was any different than any other case I've been involved in. With regard to-I usually ask for 28 potential jurors[,] and I get 28 potential jurors. The selection is random." The reference to "any other case I've been involved in" was, in defendant's view, an impermissible reliance on private knowledge. He cites an appellate court decision that held," 'A determination made by the trial judge based upon a private investigation by the court or based upon private knowledge of the court, untested by cross-examination, or any of the rules of evidence constitutes a denial of due process of law.'" People v. Jackson, 409 Ill.App.3d 631, 650 (2011) (quoting People v. Wallenberg, 24 Ill.2d 350, 354 (1962)).
¶ 94 The State disputes that, in describing the composition of the venire as random, Judge Bowers relied on her private knowledge. Rather, according to the State, it was a matter of public knowledge that the summoning of persons for jury duty in Macon County was random. In the State's view, Judge Bowers merely stated the public understanding.
¶ 95 The State has the stronger argument here. Judge Bowers cannot be fairly understood as suggesting she had gone to the Macon County Jury Commission on a personal fact-finding mission and had confirmed that the names of the venire in this case-or in any other case-had been drawn randomly. Instead, in so many words, Judge Bowers relied on publicly available law together with the presumption of regularity. A circuit court may take judicial notice of a statute. See 735 ILCS 5/8-1001 (West 2020). Under section 9 of the Jury Commission Act, the "necessary number of names" to serve on juries are to be "draw[n] by lot or by random electronic process." 705 ILCS 310/9 (West 2020). "Generally, in the absence of evidence to the contrary, it is presumed that a public official performs the functions of his or her office according to law and that he or she does his or her duty." 18 Illinois Law and Practice, Evidence § 50 (2018). Relying, in so many words, on that presumption, Judge Bowers rejected the claim of systematic exclusion.
¶ 96 To reiterate, defendant admits that defense counsel "did not present information to the court regarding the jury selection process that supported systematic exclusion." However (after accusing Judge Bowers of relying on extrajudicial knowledge), defendant faults defense counsel for this omission. Thus, when it comes to the issue of systematic exclusion, defendant's alternative claim (alternative, that is, to the claim of judicial bias in the reliance on private knowledge) is yet another claim of ineffective assistance.
¶ 97 In his brief, defendant maps out a way by which he thinks defense counsel could have proved the systematic exclusion of African-Americans from the venire. Defendant begins with section 2 of the Jury Commission Act, a section providing that, "[i]n a county with a population of less than 3,000,000 in which *** jury commissioners have been appointed" (Macon County is such a county), the jury commissioners annually "shall prepare a list of all Illinois driver's license, Illinois identification card, and Illinois Person with a Disability Identification Card holders, all claimants for unemployment insurance, and all registered voters of the county to be known as the jury list." 705 ILCS 310/2 (West 2020). Then, noting that we may take judicial notice of information on an official governmental website, defendant compares information on the "Macon County Jury Website." "All juror selections," the website reads, "are drawn electronically from a list of county residents who hold a driver's license, voters registration card, state identification card[,] and/or a disabled persons identification card." i-Juror, Macon County Jury Website, https://ijuror.court.co.macon.il.us/main.asp?id=index (last visited Oct. 29, 2022). Defendant points out that this website "says nothing about including unemployment benefit claimants in the list, which would expand the jury pool." He offers no evidence, however, that excluding unemployment-benefit claimants has the effect of excluding African-Americans more than any other group.
¶ 98 Defendant argues that even complying with section 2 of the Jury Commission Act, particularly in its" [r]eliance on state driver's license or identification card information[,] can skew a jury pool." He observes, "At least one study showed that people of color were less likely to have a driver's license, due to factors such as poverty or a concentration of residence in urban areas where a car was not needed." For such studies, he cites Forrest Wickman, "Why Do Many Minorities Lack ID?" Slate, Aug. 12, 2021, and an amici brief in Crawford v. Marion County Election Board, ___U.S. ___, 128 S.Ct. 1610 (2008).
¶ 99 Even if it were true that African-Americans in Macon County were less likely than other ethnic groups in the county to have the forms of government-issued identification listed in section 2, defense counsel could not have reasonably taken the position that the legislatively prescribed use of these identification cards was a stratagem to exclude African-Americans from jury lists. In his brief, defendant does not suggest an alternative method of identifying prospective jurors in Macon County. Using a practical method of locating prospective jury members is not intentional discrimination. It is the "intentional, planned, and deliberate exclusion of or discrimination against members of a particular *** race *** or sex by officers in charge of the selection and summoning of a jury" that violates due process and equal protection. 1 Robert S. Hunter, Trial Handbook for Illinois Lawyers-Criminal § 21:8 (9th ed. 2021) (citing Whitus v. State of Georgia, 385 U.S. 545 (1967)); see also People v. Cross, 40 Ill.2d 85, 87 (1968). Defendant's claim is comparable to that of the appellants in Rosenzweig v. United States, 412 F.2d 844, 845 (9th Cir. 1969), who "claim[ed] that primary reliance on telephone directories for jury lists result[ed] in systematic exclusion of certain groups and inclusion of others." Even so, the Ninth Circuit observed, the claimants did "not allege intentional discrimination," nor did they "meet their burden of proving that the jury commissioner [had] not fairly and honestly endeavor[ed] to discharge [his] duty." (Internal quotation marks omitted.) Id. Even if defense counsel would have been able to prove that African-Americans were less likely than other ethnic groups to possess state-issued identification, there is no reasonable probability that this proof would have yielded a finding of intentional systematic exclusion of African-Americans. See Jackson, 2022 IL App (4th) 190710-U, ¶ 37.
¶ 100 III. CONCLUSION
¶ 101 For the foregoing reasons, we affirm the circuit court's judgment.
¶ 102 Affirmed.