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Following a jury trial, defendant, Ramon Dominguez, wasconvicted of first-degree murder (720 ILCS 5/9--1(a)(1), (a)(2)(West 1998)). He was sentenced to 28 years' imprisonment. Heappeals, arguing that (1) his counsel and the trial court erred infailing to instruct the jury on the lesser-included offense ofinvoluntary manslaughter (720 ILCS 5/9--3(a) (West 1998)); and (2)he was entitled to a hearing on his fitness to be tried andsentenced. We affirm.

I. FACTS

At trial, the State produced the following evidence. DawnRamirez testified that she was a 911 operator for the North Chicagopolice department. On May 28, 1999, about 10:30 p.m., a malecalled 911 and reported that his wife had been shot at his house. He stated that the shooter had run away. The caller lived at 1224Park. According to Ramirez, the caller was "hysterical."

Gerardo Reyes testified that defendant lived at 1224 Park withdefendant's wife Martha Reyes and their children, G.D. and S.D.

S.D., defendant's six-year-old daughter, testified that sheand her mother were in a bedroom when defendant walked in. S.D.saw defendant talk loudly to her mother, retrieve a gun from acloset, put it back, retrieve it again, and use it to kill hermother. Defendant then called the police.

Richard Wilson, a North Chicago police officer, testified thathe was dispatched to 1224 Park. Defendant was standing on theporch. He was hysterical, and he said that his wife had been shot. He spoke English but with a Spanish accent. He led Wilson into thehouse, and Wilson saw a woman lying on the floor in a bedroom. Inthe same room, Wilson found a semiautomatic handgun under a bed.

Christopher Berg, another North Chicago police officer, was atthe scene with Wilson. Berg testified that he and defendant spoketo each other in English and had no difficulty understanding eachother. Defendant said that he and his children had been in thehouse and that his wife had been on the porch. Defendant statedthat he heard a gunshot, ran outside, and saw someone running away. Defendant said that he dragged his wife into the house and went toretrieve his gun. Outside the house, Berg found no evidence of anykind. Inside the house, Berg saw no indication that anyone oranything had been dragged.

Robert D. Peters, a North Chicago firefighter/paramedic, wasalso dispatched to 1224 Park. He testified that he had smelledgunpowder in the bedroom.

William Jones, another North Chicago police officer at thescene, testified that the gun under the bed was lacking a magazineand thus appeared to be empty. There were no signs of a struggleinside the house.

Dean Kharasch, a North Chicago police officer, was at thescene as well. He testified that he asked defendant about the gun. Defendant said that the shooter had used the gun to shoot his wifein the living room. Defendant added that he fought with theshooter, who then threw the gun under the bed. Kharasch had notrouble understanding defendant's English. Kharasch's investigation confirmed that the shooting had occurred inside thehouse. In the bedroom closet, Kharasch found the magazine to thegun and a box of ammunition.

Brian Carder, a North Chicago police detective, testified thathe found a shell casing on a dresser in the bedroom. No othercasings were found in the house. No fingerprints were found on thegun. The gun could have been fired without a magazine if a bullethad been in the chamber.

The parties stipulated that Elizabeth Horvath, a physician,would testify that Martha Reyes died from a gunshot wound to thechest. Nancy Jones, a forensic pathologist, testified that Reyeswas shot from no more than 18 inches away.

Robert Wilson, a firearms examiner for the Northern IllinoisPolice Crime Laboratory, testified that the shell casing on thedresser had been ejected from the gun found under the bed. Hefurther stated that the same gun had fired the bullet recoveredfrom Martha Reyes's body. That bullet matched the bullets found inthe closet.

The State rested, and defendant presented no evidence. Inresponse to the court's inquiry, defendant stated that he did notwish to testify. During the conference on jury instructions,neither the parties nor the court addressed the propriety of aninstruction on involuntary manslaughter. No such instruction wastendered to the court or given to the jury.

In his closing argument, defense attorney Michael Meliusacknowledged that defendant had shot his wife. Melius stated,however, that defendant's act did not evince an intent to kill ordo great bodily harm. Melius argued:

"We read about it all the time. It happens in accidents. It happens when people are negligent. It happens when peopleare reckless. It happens when people are stupid. It happenswhen people pick up weapons without determining whether or notthe gun is loaded.

Is that intent to kill somebody then if you pick up thatgun, and *** you believe that it's not loaded and then youpull the trigger and the gun goes off? ***

*** That could very well be an accident, recklessness,negligence, stupidity, any number of different things[.] ***But it doesn't make it murder."

The jury found defendant guilty of first-degree murder.

Represented by new counsel, defendant filed a posttrialmotion, arguing that his trial counsel did not allow him to decidewhether to submit an instruction on involuntary manslaughter. Defendant further argued that counsel was ineffective for failingto submit the instruction.

In support, defendant filed various affidavits. In his ownaffidavit, defendant averred that he was not fluent in English anddid not understand his option to instruct the jury on involuntarymanslaughter. His trial counsel presented the issue in a "reallyfast" discussion in the courtroom and did not use an interpreter. In a separate affidavit, Melius confirmed that he and his trialpartner, Martin Shaffer, explained the issue to defendant in thecourtroom and did not use an interpreter.

In a third affidavit, Michael J. Boehm, a priest, averred thathe was fluent in Spanish and met weekly with defendant. Defendant's English skills were "extremely limited to the point ofbeing non-existent," and he did not understand what his lawyerstold him. Melius did not respond to Boehm's repeated attempts tocontact him.

At a hearing on the motion, Shaffer testified that he anddefendant spoke to each other in English. Defendant did not speakEnglish as well as a native speaker and usually spoke in singlesyllables. Nevertheless, Shaffer always believed that defendantcould understand him. Shaffer never asked defendant to explain alegal concept in his own words.

Melius testified that he brought an interpreter to his initialmeetings with defendant but not to later meetings. At the latermeetings, Melius and defendant spoke English and "had no problem"communicating. Defendant occasionally "threw in some Spanish," butMelius then asked him to speak English, and defendant complied. They discussed all legal concepts in English and without aninterpreter. Defendant was not fluent in English and spoke mostlyin "yeses and nos."

Melius further testified that he and defendant had three briefdiscussions about a lesser-included-offense instruction. Eachdiscussion was in English and without an interpreter. Meliusexplained how the instruction could affect the case, how it couldpresent a "compromise." Melius used plain English, and defendantunderstood his words, though not necessarily the legaltechnicalities. Melius made no recommendation, and defendant didnot request an instruction. There was "kind of a consensus *** togo for all or nothing." The decision was made "with thedefendant." Melius believed that the strategy was sound, but hewould not have pursued it had defendant objected. Meliusconcluded:

"There was a discussion between myself, Mr. Shaffer and Mr.Dominguez about a lesser included offense. In ourdiscussions, it was determined that we would not submit alesser included offense [instruction]. Ultimately, if Mr.Dominguez would have said I want [an instruction], I wouldhave submitted it. He did not say that. *** Thus it wouldhave been my ultimate decision, I guess, not to do thatbecause I didn't recommend it and he didn't say that he wantedit."

Boehm testified that defendant once asked him whatmanslaughter was. Defendant was very confused, and he frequentlyreiterated that he did not understand the proceedings. Boehm neverspoke to defendant in English, as defendant did not speak Englishfluently. Defendant could speak sufficient English to participatein a "normal" conversation, but not in one "that involved any typeof detail." Defendant said that he was frustrated because hislawyers "didn't give him enough time," but he did not say that hecould not understand them. Nevertheless, Boehm believed thatdefendant could not understand.

Joanne Arreguin, defendant's ex-wife, testified that by 1994defendant could speak English sentences and string them together. He occasionally inserted some Spanish. He spoke English with hischildren but had more difficulty reading English. By May 1999, hemixed Spanish and English more frequently.

Before the court ruled on the posttrial motion, defendantmoved for a fitness hearing. He argued that he was takingpsychotropic medication before, during, and after his trial. Thecourt proceeded to take evidence on that issue.

Defendant called Michael M. Gelbort, a clinical psychologist,who testified that he had evaluated defendant and had not "reacheda clear-cut opinion as to fitness at the time of trial." However,Gelbort had "no doubt" that defendant was not fit to be sentenced. Defendant was suffering from psychotic depression and was takingsignificant psychotropic medications. He "was not really in verygood contact with what was going on around him." He did notremember much of his trial. He was exhibiting "major depressivesymptoms of psychotic proportion," including suicidal ideations,auditory hallucinations, considerable difficulty stringing thoughtstogether, and an inability to process information. Defendant'slanguage barrier contributed to the problem, though Gelbort anddefendant spoke English to each other, and Gelbort was able toevaluate defendant without an interpreter. In English, defendanttold Gelbort about his education and his children and furtherexplained that he had shot his wife accidentally. Gelbort was ableto understand those statements.

The State called John Dunne, also a clinical psychologist, whotestified that he had evaluated defendant with an interpreter. Defendant was suffering from psychotic depression and possiblyposttraumatic stress disorder. He stated that his medicationsaffected his concentration and made him dizzy and sleepy. Nevertheless, he was very responsive to Dunne's questions.

Dunne testified that defendant identified two of the fourmedications he was taking. Defendant explained the charge of whichhe had been convicted and how his wife had died. He described thegun and stated that he had thought it was empty and had fired itaccidentally. He remembered the names of his trial lawyers, hiscurrent lawyer, and the trial judge. He recalled the jury, thewitnesses, and the evidence. He quoted S.D.'s testimony. Herecalled that he did not testify and stated that his medicationshad prevented him from testifying. He stated that his lawyers hadexplained involuntary manslaughter. He knew that he was facing atleast 20 years' imprisonment and would not be eligible for good-time credit. He was not distracted or hallucinating. Hishallucinations occurred at night and would not affect him in court. His ability to understand or cooperate was not impaired. He didnot exhibit significant memory loss or significant difficultythinking. Dunne concluded that defendant was fit to be sentenced. However, Dunne was unable to determine whether he was fit at thetime of trial.

The court credited Dunne's testimony. The court further notedits own observations that defendant "function[ed] properly [and]appeared to be oriented." Thus, the court found no bona fide doubtof defendant's fitness at trial or for sentencing, and it deniedthe motion for a fitness hearing.

Returning to defendant's posttrial motion, the court statedthat it was "surprising" that the defense offered no instruction oninvoluntary manslaughter. Nevertheless, the court determined that"the defendant was able to communicate with his attorneys." Thecourt further found that the option to submit the instruction "wasexplained to the defendant, and the defendant opted not to exercisethat right." The court concluded that defendant made the decisionwith adequate information and understanding. His posttrial motionwas denied, he was sentenced, and he appealed.

II. INVOLUNTARY MANSLAUGHTER INSTRUCTION

Defendant argues that, for three reasons, he is entitled to anew trial because the jury was not instructed on involuntarymanslaughter. He asserts that (1) his trial attorneys denied himhis right to decide whether to submit the instruction and that,even if he did decide, he was incapable of making a knowing andintelligent decision; (2) his trial attorneys were ineffective forfailing to recommend the instruction; and (3) the trial courtshould have issued the instruction sua sponte.

A. The Decision

A defendant, rather than his counsel, has the right to makethe ultimate decision whether to tender an instruction on a lesser-included offense. People v. Brocksmith, 162 Ill. 2d 224, 229(1994). The defendant must make the decision knowingly andintelligently, though the trial court need not inquire whether thedecision is so informed. See People v. DePaolo, 317 Ill. App. 3d301, 310-11 (2000). Here, whether defendant made the ultimatedecision and whether he did so knowingly and intelligently weredisputed questions of fact. Thus, we may reverse the trial court'sdeterminations only if they are against the manifest weight of theevidence. See Brocksmith, 162 Ill. 2d at 229 (decision to tenderlesser-included instruction analogous to decision to plead guilty);People v. Kelley, 44 Ill. 2d 315, 317 (1970) (determination whetherguilty plea was involuntary rested on credibility of witnesses andthus was subject to reversal only if against the manifest weight ofthe evidence).

Defendant relies first on Melius's statement that "it wouldhave been my ultimate decision, I guess, not to" instruct the juryon involuntary manslaughter. However, as is indicated by thephrase "I guess," Melius was not firm in that belief. Indeed,Melius testified that he, Shaffer, and defendant reached "kind ofa consensus *** to go for all or nothing." That statement impliesthat the decision was as much defendant's as it was his attorneys'.

Furthermore, despite any doubt about who ultimately made thedecision, there was no doubt that defendant ultimately had controlover the decision, and that is what he was required to have. SeePeople v. Segoviano, 189 Ill. 2d 228, 240 (2000) (under Brocksmith,the lesser-included-instruction decision is one "over which adefendant ultimately must have control"). Melius testifiedunequivocally that, had defendant requested an instruction, Meliuswould have complied. Thus, the evidence supported the trialcourt's finding that defendant was given the authority to make thedecision and, with his attorneys, made the decision to forgo theinstruction.

Defendant responds that, because his attorneys discussed theissue briefly and in English, he could not have made a knowing andintelligent decision. We first note that it is unclear how muchtime was spent on the issue. In his affidavit, defendant statedthat the issue arose in one "really fast" discussion. At thehearing, however, Melius testified that he and defendant had threediscussions, though each was brief. In light of that conflict, thetrial court was entitled to credit Melius's testimony and find thatthe three discussions, though brief, were collectively sufficientto inform defendant's decision.

As for defendant's language ability, the evidence was wildlydivergent. Boehm described defendant's English skills as virtually"non-existent." Nevertheless, the bulk of the evidence suggestedotherwise. At trial, a 911 operator and several police officersindicated that they were able to communicate substantively withdefendant in English. After trial, Shaffer, Melius, and Gelborttestified similarly. Arreguin confirmed that defendant had beenable to express complex thoughts in English. The trial court, too,heard defendant speak, as when he told the court that he wished notto testify at trial. Thus, the court was clearly permitted to findthat defendant was able to communicate with his attorneys and thathis language skills did not prevent him from making a knowing andintelligent decision.

B. Ineffective Assistance of Counsel

Next, defendant contends that his attorneys were ineffectivefor failing to recommend that he submit an instruction oninvoluntary manslaughter. To establish that he received the ineffective assistance of counsel, a defendant must show that (1)counsel's performance fell below an objective standard ofreasonableness; and (2) it is reasonably probable that, but forcounsel's deficient performance, the result of the proceedingswould have been different. Strickland v. Washington, 466 U.S. 668,694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068 (1984); People v.Page, 193 Ill. 2d 120, 131-32 (2000). The defendant must overcomea strong presumption that counsel's actions were the product ofsound trial strategy. People v. Gapski, 283 Ill. App. 3d 937, 942(1996). Indeed, strategic decisions are virtually unchallengeableas long as the strategy was not so unsound that it failed tosubject the State's case to any meaningful adversarial testing. People v. West, 187 Ill. 2d 418, 432-33 (1999).

In People v. McIntosh, 305 Ill. App. 3d 462 (1999), thedefendant was convicted of criminal sexual assault. Thedefendant's theory of the case was that his encounter with thevictim had been consensual. On appeal, the defendant argued thathis trial counsel was ineffective for failing to instruct the juryon the lesser-included offense of criminal sexual abuse. Theappellate court disagreed:

"[T]he decision of whether to submit an instruction on alesser-included offense is typically considered to be one oftrial strategy, which has no bearing on the competency ofcounsel. *** Defendant's attorney may have strategized that itwas better for the jury not to have the choice of the lesser-included offense in the hope that they would be more inclinedto acquit ***." McIntosh, 305 Ill. App. 3d at 471.

See also People v. Nunez, 319 Ill. App. 3d 652, 659 (2001)("Defense counsel's decision not to pursue a lesser includedoffense was part of a cohesive trial strategy and did notconstitute ineffective assistance").

Here, defendant's theory of the case was that he had shot hiswife without a mental state required for murder. In support, thedefense relied on the evidence that the gun had appeared to beempty. We acknowledge that an instruction on involuntarymanslaughter would not have been inconsistent with defendant'stheory. Nevertheless, counsel reasonably could have believed thatthe instruction would have converted a likely acquittal into alikely conviction of the lesser crime. The strategy may havefailed, but so must defendant's claim that counsel was ineffective. See Gapski, 283 Ill. App. 3d at 942-43.

C. Sua Sponte

Defendant's final argument on this issue is that, in failingto instruct the jury sua sponte on involuntary manslaughter, thetrial court abused its discretion to do so. See People v. Garcia, 188 Ill. 2d 265, 282 (1999). However, neither in his posttrialmotion nor at the hearing thereon did defendant challenge thecourt's exercise of its discretion on this point. Thus, thisargument is waived. See People v. Enoch, 122 Ill. 2d 176, 186(1988) ("failure to raise an issue in a written motion for a newtrial results in a waiver of that issue on appeal"). Furthermore,even if we wanted to evaluate the court's exercise of itsdiscretion, defendant's failure to elicit the court's rationaleprohibits us from doing so. Cf. Foutch v. O'Bryant, 99 Ill. 2d389, 392 (1984) (without transcript of hearing on motion, "there isno basis for holding that the trial court abused discretion indenying the motion"). As a result, we decline to address thisissue.

III. FITNESS

On this point, defendant raises two arguments. He assertsthat (1) the trial court erred in finding no bona fide doubt of hisfitness; and (2) his trial attorneys were ineffective for failingto move for a fitness hearing before trial.

A. Bona Fide Doubt

A defendant is presumed fit, and he will be deemed unfit onlyif he is unable to understand the nature and purpose of theproceedings or to assist in his defense. He is entitled to afitness hearing only if there exists a bona fide doubt of hisfitness. Relevant factors in determining the existence of a bonafide doubt include the defendant's irrational behavior, hisdemeanor at trial, and medical opinions. There are no fixed orimmutable signs that invariably indicate a bona fide doubt. Indeed, the question is often a difficult one that implicates awide range of manifestations and subtle nuances. People v. Easley,192 Ill. 2d 307, 318-19 (2000). We may reverse the trial court'sresolution of the question only if the court abused its discretion. People v. Contorno, 322 Ill. App. 3d 177, 179 (2001).

As to whether defendant was fit for trial, neitherpsychologist offered a definitive opinion. As a result, noprofessional evaluation stood to contradict the court's ownassessment of defendant's behavior and demeanor at trial. Thecourt stated that it had seen nothing in defendant's conduct toindicate an inability to understand or participate in theproceedings. The record of the trial supports the court's finding;indeed, when defendant spoke, he spoke rationally, and the courtnever needed to address any inappropriate behavior. Thus,regardless of the general soundness of defendant's mind, the courtdid not abuse its discretion in finding that he had been fit fortrial. See Easley, 192 Ill. 2d at 320 ("Fitness speaks only to aperson's ability to function within the context of a trial. *** Adefendant can be fit for trial although his or her mind may beotherwise unsound").

As to defendant's fitness for sentencing, Gelbort and Dunneoffered totally opposite views. Each assessment was thorough andreasoned. However, the trial court chose to credit Dunne, whoseassessment squared with its own observations. We have no basis toquarrel with its choice. See People v. Eddmonds, 143 Ill. 2d 501,522-23 (1991) (no bona fide doubt despite conflict in medicalevidence).

Defendant asserts that "Dunne's data contradict[ed] hisconclusions," but we disagree. Though Dunne noted defendant'smental illness, medications, and the side effects that defendantreported, the issue again was not defendant's condition in generalbut his ability to understand and participate in the proceedings. Dunne's conclusion was based on what he perceived to be defendant'snear-mastery of the most intricate details of his trial, and thatobservation clearly supported Dunne's finding. See Eddmonds, 143Ill. 2d at 520-21 (despite mental illness, no bona fide doubt offitness where defendant exhibited clear understanding ofproceedings).

In sum, Dunne's testimony, along with the court's ownobservations, sufficed to allow the court to find no bona fidedoubt of defendant's fitness for sentencing. The court did notabuse its discretion.

B. Ineffective Assistance of Counsel

Finally, defendant asserts that his trial attorneys wereineffective for failing to move for a fitness hearing. That claimmay succeed only if there exists a reasonable probability that, haddefendant received a fitness hearing, he would have been foundunfit to stand trial. People v. Mitchell, 189 Ill. 2d 312, 334(2000). In attempting to show that probability, defendant relieson the same evidence that the trial court rejected as a basis fora bona fide doubt. Defendant does not explain how, if thatevidence was insufficient to raise a bona fide doubt of hisfitness, it would have sufficed to prove that defendant wasactually unfit. Thus, we conclude that defendant's trial attorneyswere not ineffective.

IV. CONCLUSION

For these reasons, the judgment of the circuit court of LakeCounty is affirmed.

Affirmed.

O'MALLEY and BYRNE, JJ., concur.