Court of Appeals of Illinois, First District, Fifth Division
from the Circuit Court of Cook County. No. 12 CR 16053.
Honorable Thaddeus L. Wilson, Judge Presiding.
APPELLANT: Michael J. Pelletier, State Appellate Defender,
Alan D. Goldberg, Deputy Defender, Rachel Moran, Assistant
APPELLEE: Anita Alvarez, State's Attorney, Alan J.
Spellberg, Assistant State's Attorney, Brian K. Hodes,
Assistant State's Attorney, Mary P. Needham, Assistant
State's Attorney, Lisa Sterba, Assistant State's
and Lampkin, Justices concurred in the judgment and opinion.
[¶1] Following a bench trial in the circuit
court of Cook County, defendant Daniel Guja was acquitted of
attempted first degree murder, aggravated criminal sexual
assault, aggravated criminal sexual abuse, burglary, and
aggravated domestic battery, but was found guilty of domestic
battery and unlawful restraint. Defendant was sentenced to
two concurrent two-year terms in the Illinois Department of
Corrections. On appeal, defendant argues: (1) defense counsel
was ineffective for failing to include the affirmative
defenses of necessity and self-defense in his answer to
discovery in violation of Illinois Supreme Court Rule 413(d)
(eff. July 1, 1982); (2) the trial court abused its
discretion in denying his motion to amend the answer as a
sanction for the discovery violation; and (3) certain fees
and fines should be vacated or reduced. Because we conclude
defendant was not prejudiced by either defense counsel's
failure to amend his answer to discovery or the trial
court's denial of defendant's request to amend his
answer, we affirm the judgment of the circuit court. We,
however, modify the fees and fines assessed as provided
[¶3] The evidence at trial established that
in the early morning hours of December 30, 2011, defendant
and his then-girlfriend, Sandra Ortiz (Ortiz), began arguing.
This argument escalated into a physical altercation, which
left Ortiz with injuries. Ortiz was thereafter taken by
ambulance to an emergency room where she was treated.
[¶4] 4 Defendant was subsequently indicted
on 20 separate charges for attempted first degree murder (720
ILCS 5/8-4(a), 9-1(a)(1) (West 2010)), aggravated criminal
sexual assault (720 ILCS 5/11-1.30(a)(4) (West 2010)),
aggravated criminal sexual abuse (720 ILCS 5/11-1.60(a)(6)
(West 2010)), burglary (720 ILCS 5/19-1(a) (West 2010)),
aggravated domestic battery (720 ILCS 5/12-3.3(a-5) (West
2010)), domestic battery (720 ILCS 5/12-3.2(a)(1) (West
2010)), and unlawful restraint (720 ILCS 5/10-3(a) (West
[¶5] On September 13, 2012, the State filed
a motion for pretrial discovery requesting in part written
notice of any defenses defendant intended to assert at trial.
On June 20, 2013, defense counsel filed an answer to the
State's motion stating that defendant would " rely
on the State's inability to meet its burden of
proof." The answer did not list any affirmative or
[¶6] Defendant's bench trial commenced
on September 18, 2013. During the opening statements, defense
counsel asserted that Ortiz " started a fight and became
violent with defendant." Defense counsel also stated
that, while restrained by defendant, Ortiz attempted to
strike him. Defense counsel further argued that the bruises
sustained by Ortiz demonstrated that she was restrained by
defendant and that ultimately the evidence would demonstrate
that defendant was not guilty.
[¶7] Ortiz testified that she was 40 years
old. At the time of the altercation, she was living in
Chicago and dating defendant. The altercation occurred at a
building owned by Ortiz located on North Milwaukee Avenue in
Chicago. The first floor of the building was a commercial
space she used to host parties, while the second floor was
occupied by tenants. In the late evening of December 29,
2011, Ortiz, defendant, and some of her friends prepared the
first floor of her building for a party.
[¶8] At approximately 3 a.m. on December 30,
2011, Ortiz and defendant left the building to go to a
nightclub, where they met other friends. While there, Ortiz
consumed " a few drinks." When the nightclub closed
at 4 a.m., Ortiz drove defendant back to her building. During
the ride, defendant accused Ortiz of being interested in
[¶9] Defendant and Ortiz were arguing as
they exited her vehicle. Ortiz informed defendant that he was
not welcome in her building. Based on prior incidents, Ortiz
believed the argument would escalate further, so she
telephoned the police. While Ortiz was making the phone call,
defendant seized the cell phone from Ortiz and removed the
cell phone battery. According to Ortiz, the police arrived at
her building approximately five minutes later. She spoke with
the police and went inside. Defendant remained outside and
continued to speak with the police.
[¶10] When Ortiz believed defendant had
departed, she went outside and walked across the street to
speak with a woman named Marta who sold tamales from a stand.
During the conversation, Ortiz observed defendant "
popping his head out" from behind an automobile parked
one-quarter of a block from her building. Ortiz testified
that she used Marta's cell phone to contact the police,
but the police did not arrive.
[¶11] Ortiz went back to her building and 30
minutes later began loading personal items into the
automobile she planned to drive to her home in the suburbs.
As Ortiz attempted to reenter the building, defendant, who
was hiding outside the door, pushed his way inside. In doing
so, defendant knocked Ortiz to the ground. Ortiz attempted to
stand up, but defendant knocked her down again, locked the
door, and dragged her into the next room by her ankles. Ortiz
kicked and yelled, demanding that defendant leave the
building. Defendant then struck her in the head and face. On
cross-examination, Ortiz clarified that defendant punched her
with a closed fist and slapped her on the side of the head,
but not in the face. Ortiz attempted to flee from the
building, but defendant grabbed her, threw her over his
shoulder, and slammed her body onto a granite countertop.
Ortiz further testified that she lost consciousness when her
head struck the countertop.
[¶12] When Ortiz regained consciousness,
defendant was on top of her. Defendant held her down and
placed his hands over her mouth, restricting her breathing.
Ortiz then placed her hands inside defendant's mouth to
get him to stop choking her. Defendant got up while Ortiz
remained on the floor crying and yelling at him to leave.
[¶13] As Ortiz then attempted to crawl away
from defendant, he grabbed her by the feet, pulled her
towards him, and pulled her pants down. It was then that
defendant " shoved" his fingers in her anus.
Defendant proceeded to rip her blouse and brassiere, and grab
[¶14] Ortiz attempted to escape through the
back door when defendant kicked an interior door down and it
fell on her. Defendant then threw a metal table on top of
her. As Ortiz was lying on the ground begging him to leave,
defendant tried to take Ortiz's keys out of the pocket of
the vest she was wearing. After a struggle, defendant
obtained the keys, declared, " I give up," and
[¶15] Ortiz testified that after defendant
left she went outside and yelled for help. One of her
tenants, a man named Benjamin, came out of the building and
waited with Ortiz until the police and an ambulance arrived
and transported her to Norwegian American Hospital. Ortiz was
treated at the hospital, but did not have any broken bones
and was discharged later that afternoon.
[¶16] According to Ortiz, during the
struggle, which lasted from approximately 5 a.m. through
10:30 a.m., defendant grabbed her throat, pulled her hair,
and " banged" her head into walls and the floor
several times. Ortiz identified photographs of her injuries,
which included scratches on her chest, and bruises on her
face, lips, wrist, arms, hands, legs, and knees.
[¶17] During her testimony Ortiz
acknowledged that she did not immediately inform the
ambulance crew or the police that defendant had inserted his
fingers into her anus because her tenant was with her at the
time and she was embarrassed. Ortiz, however, did inform them
of this fact at the hospital. She also acknowledged that she
had loaned defendant approximately $5,000 and had not been
fully repaid. Ortiz denied consuming alcohol prior ...