No. 3--05--0272 _________________________________________________________________ filed November 17, 2006. IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2006
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of the 10th Judicial Circuit, ) Tazewell County, Illinois, Plaintiff-Appellee, ) ) v. ) No. 03--CF--511 ) DANIEL LEE ROHLFS, ) Honorable ) J. Peter Ault, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________
JUSTICE O’BRIEN delivered the opinion of the court: _________________________________________________________________
Following a jury trial, defendant Daniel Lee Rohlfs was
convicted of Class 3 felony theft by deception (720 ILCS 5/16--
1(a)(2) (West 2002)). Defendant appeals, contending that the
trial court erred in (1) denying his pretrial request to proceed
pro se; (2) allowing the State to introduce at trial an evidence
deposition taken outside defendant's personal presence; (3)
admitting evidence of readouts of two caller-ID devices; and (4)
failing to conduct an inquiry into defendant's pro se posttrial
claims of ineffective assistance of trial counsel. We remand for
further proceedings.
FACTS
On July 1, 2003, defendant was a resident of the Tazewell County jail on charges unrelated to the offense in this case. On
that date, 72-year-old Jean Moser received a collect telephone
call from the Tazewell County jail. The caller addressed Jean as
"Aunt Jean" and identified himself as "Steve." He told Jean he
needed $3,000, because his car had been repossessed. Jean, who
was not an attorney and had a nephew named Steve Sumner, told the
caller that she did not have $3,000. The caller asked for phone
numbers of "Aunt Lois" and "Aunt Marilyn." Jean's sisters' names
were Lois and Marilyn. Assuming that the caller must be her
nephew, Jean gave him telephone numbers for Lois and Marilyn.
Jean's husband, Keith Moser, accepted a collect call from
the Tazewell County jail on July 2, 2003. The caller identified
himself as "Steve," and asked to speak with Jean. Keith informed
the caller that Jean was not at home. He immediately knew that
the voice was not that of Jean's nephew, Steve Sumner. When
Keith told Jean about the call, she telephoned the Tazewell
County jail to ascertain if her nephew was there. She learned
that he was not, so she telephoned the Morton police department
to report the calls.
The next day, the Mosers received another call from the
Tazewell County jail. Keith informed the caller that Jean was
not at home, but would return in an hour. The Mosers then
arranged for the Morton police to come to their home to record
the conversation if the caller telephoned again. Morton police
2 detective Bill Roth attempted to tape-record the conversation
when the Mosers received another call later that afternoon. The
caller apologized to Jean for falsely telling her that his car
had been impounded. He said he and "Sandy" had had marital
problems resulting in his being jailed, and he needed $700 for
bail. The caller said if she would go to the bank and take out
$700 in cash, he would have someone come to the house to pick it
up. He said another lady would mail her a check to cover the
$700.
Meanwhile, on the morning of July 3, 2003, 84-year-old Ruth
Livengood received a collect telephone call from the Tazewell
County jail. Ruth asked who was on the line, and the caller
said, "You mean you don't recognize your grandson?" Ruth's only
adult grandson was Don J. Livengood, so she assumed it was he.
The caller said he had fallen behind on car payments, and he
needed $700 to get the car back. He told Ruth to send a check in
an envelope addressed to his attorney, Jean Moser, in care of
Steve Sumner. Ruth complied by immediately writing out the check
and having her housekeeper deliver it to the post office.
When Jean received the check from Ruth on July 5, 2003, she
immediately turned it over to the Morton police. The police, in
turn, informed Ruth that she had been the victim of a scam and
assured her that her check had not been cashed; it was in the
possession of the police.
3 After charges were filed against defendant and counsel was
appointed for him, defendant filed numerous pro se motions. The
court admonished defendant to proceed through counsel.
Defendant, however, persisted in filing pro se pleadings and
ignored the court's cautionary admonishment to speak only through
his attorney. Ultimately, defendant's attorney, Mark Wertz,
sought a fitness examination, claiming that there was a bona fide
doubt as to defendant's fitness to stand trial. The court
granted the motion, and, on July 24, 2004, a jury found defendant
unfit to stand trial. He was committed to the Department of
Human Services (DHS) for treatment. On December 27, 2004, DHS
issued a report indicating that defendant's fitness was restored
with medication. On January 19, 2005, the trial court determined
that defendant was fit to stand trial, and the prosecution
resumed. The court set the cause for trial to begin February 28,
2005.
On February 1, 2005, defendant moved for substitution of
counsel. He claimed that attorney Wertz had refused to give him
a copy of all of the prosecution's discovery and he could not
work with Wertz. On February 15, 2005, the court denied
defendant's motion and admonished defendant that, unless he hired
other counsel, attorney Wertz would be representing him at trial.
The following colloquy ensued:
"THE DEFENDANT: I am--invoke my rights to represent
4 myself then. I'd like to have all my files.
THE COURT: That request is denied. The Court has
reviewed what's happened in these cases up until now and
quite frankly, I don't think you're in a position where you
could adequately represent yourself, and that request is
denied at this time."
The prosecutor then requested a continuance of the trial due
to the unavailability of Ruth Livengood, who was scheduled for
surgery to repair an aneurysm in her heart on February 28, 2005.
In the alternative, the prosecutor requested that an evidence
deposition be taken to preserve the witness's testimony. Upon
defense counsel's objection to a continuance, the court denied a
continuance and granted the State's request for an evidence
deposition.
On February 17, defense counsel orally renewed defendant's
request to represent himself. The court took the matter under
advisement.
On February 23, 2005, Ruth Livengood's deposition was taken
in her home. Livengood was seated in an easy chair. She had
tubes that attached her to an oxygen tank. She explained that
she had been on oxygen for five years and suffered from high
blood pressure that elevated when she was under stress. Because
of Livengood's medical circumstances and the small size of her
apartment, arrangements had been made to allow defendant to view
5 and hear the deposition by one-way closed circuit television from
a police van parked outside the building where Livengood resided.
Defendant and his attorney were provided with cellular telephones
by which to communicate during the deposition. At the conclusion
of the deposition, police sergeant Jeff Lower stated that, due to
the small size of Livengood's apartment, it was not possible to
bring defendant physically into the apartment without
compromising security.
On February 28, defendant told the court that he wished to
proceed to trial with Wertz as his counsel. After the court
heard and ruled on several pretrial motions, the trial began on
March 1, 2005. Testifying for the State, Jean Moser said that,
after the first call from the Tazewell County jail on July 1,
2003, she checked her caller ID to see if the caller phoned her
again. Jean said her caller ID device was working properly at
the time, because every time a friend would call, that person's
telephone number would be displayed on the caller ID. The number
on her caller ID device each time "Steve" phoned was 353-9967.
Jean also testified that she had a sister, Barbara, who had died
in April 2003. Barbara was Steve Sumner's mother, and her
obituary listing surviving relatives (including her sisters and
Steve Sumner's wife, Sandy) had run in the local newspaper.
Morton police detective Ray Ham testified that he
accompanied Detective Roth to the Moser residence on July 3,
6 2003. Prior to their visit to the Mosers, Ham had arranged with
Tazewell County sheriff's detective Darrell Stoecker to monitor
calls made by the jail's inmates. On July 3, Stoecker
ascertained that defendant was using the jail's telephone from
his cellblock during the time when Jean Moser accepted the
collect call from the jail that Roth attempted to tape record.
Stoecker subsequently had a call made from the same telephone
into the jail's administrative office. Stoecker testified that
the caller ID device in the administrative office was working
properly at the time. The caller ID displayed number 353-9967
when the call from defendant's cellblock came through.
Testifying for the defense, Detective Roth stated that his
attempt to record Jean Moser's telephone conversation on July 3,
2003, was unsuccessful. He said the quality of the recording was
too poor to discern what the people were saying and he did not
preserve the tape. After admonishments, defendant elected not to
testify on his own behalf.
Following deliberations, the jury returned its verdict
finding defendant guilty of theft by deception, as charged.
Defendant subsequently filed a 10-page pro se motion for new
trial claiming numerous trial errors and ineffective assistance
of trial counsel. Attorney Wertz also filed a motion for new
trial. Prior to sentencing, the court denied the motion filed by
Wertz without addressing defendant's pro se motion. The court
7 then sentenced defendant to 10 years' imprisonment, and he
appeals.
ISSUES AND ANALYSIS
1. Self-Representation
Defendant initially argues that he was improperly denied his
constitutional right to represent himself because the trial judge
merely believed that defendant was incapable of doing so.
Defendant contends that, once he elected self-representation, the
court was obligated to admonish him of the perils of self-
representation and then grant his request to proceed pro se. We
disagree.
As a general rule, a criminal defendant has a constitutional
right to represent himself if he makes an unequivocal request to
do so. People v. Silagy, 101 Ill. 2d 147, 461 N.E.2d 415 (1984);
People v. Leeper, 317 Ill. App. 3d 475, 740 N.E.2d 32 (2000).
However, the right of self-representation is not absolute and may
be forfeited if the defendant engages in serious and
obstructionist misconduct, or if he cannot make a knowing and
intelligent waiver of counsel. People v. Ward, 208 Ill. App. 3d
1073, 567 N.E.2d 642 (1991). On review, the trial court's
decision on a defendant's election to represent himself will be
reversed only if the court abused its discretion. People v.
Fritz, 225 Ill. App. 3d 624, 588 N.E.2d 307 (1992).
In this case, the record discloses that defendant engaged in
8 obstructionist conduct by repeatedly filing ill-conceived
pretrial pleadings and disregarding the court's admonitions to
speak through his attorney. He also equivocated on his request
to represent himself. The record shows that, after defendant was
found fit to stand trial, he wanted the State's discovery turned
over to him, and he argued that attorney Wertz "sabotaged" his
case by depriving him of the documents. Defendant requested that
the court appoint new counsel for him. When that request was
denied, defendant made a last-ditch attempt to obtain the
discovery material by announcing that he was invoking his right
to represent himself. The court initially denied defendant's
oral motion, but later took the matter under advisement at
defense counsel's request. Subsequently, upon further inquiry by
the court, defendant abandoned his request and admitted that he
did not want to present pretrial motions or proceed to trial pro
se. See People v. Cain, 171 Ill. App. 3d 468, 525 N.E.2d 1194
(1988).
It is clear from defendant's vacillating positions and his
pretrial courtroom behavior that his request for self-
representation was not an unequivocal invocation of his right to
proceed pro se. Rather, it appears that defendant was merely
attempting to undermine his attorney's professional judgment and
to obstruct the orderly prosecution of this cause. Accordingly,
we cannot say that the trial court abused its discretion in
9 denying defendant's request.
2. Ruth Livengood's Evidence Deposition
Next, defendant presents a multi-part argument concerning
the taking and admission into evidence of Ruth Livengood's
evidence deposition. He contends that (1) his right of self-
representation was violated by attorney Wertz's participation in
the deposition on defendant's behalf; and (2) accommodations made
for defendant's participation at the deposition deprived him of
his rights to be personally present at a critical stage of the
prosecution and to confront the witness. He also claims that
admission of the video-recorded evidence deposition was not
harmless error. We review these contentions of error under an
abuse-of-discretion standard. People v. Lobdell, 172 Ill. App.
3d 26, 525 N.E.2d 963 (1988); People v. Johnson, 118 Ill. 2d 501,
517 N.E.2d 1070 (1987).
a. Self-Representation
Defendant contends that the trial court's failure to
admonish him pursuant to Supreme Court Rule 401 (134 Ill. 2d R.
401) and to grant his request to proceed pro se deprived him of
his constitutional right of self-representation at Ruth
Livengood's evidence deposition and rendered the video deposition
inadmissible at trial.
As aforesaid, we find no abuse of the trial court's
discretion in denying defendant's request to represent himself.
10 Because the record shows that defendant's request was advanced
for reasons inimical to the orderly administration of justice,
the court did not err in overruling defendant's objection to the
video evidence deposition on the ground that it was taken in
violation of defendant's right of self-representation.
b. Defendant's Right to Be Personally Present
and to Confront Witnesses
Defendant also argues that his constitutional rights to be
present in person and to confront witnesses against him were
impermissibly compromised by conducting Ruth Livengood's evidence
deposition while defendant remained outside the witness's
presence and was able to view her only by one-way closed circuit
television.
A criminal defendant is entitled to appear and defend in
person and by counsel at all critical stages of a prosecution; he
also enjoys the right to face-to-face confrontation with
witnesses against him. U.S. Const., amends. VI, XIV; Ill. Const.
1970, art. I, §8. However, the defendant's right to appear in
person is not a substantial right in itself; rather, it is a
means of securing substantial due process rights that may be
affected by the proceeding. People v. Bean, 137 Ill. 2d 65, 560
N.E.2d 258 (1990). A narrow exception for face-to-face
confrontation exists where an individualized showing of necessity
is made by the State and adequate arrangements are made to strike
11 a proper balance between the defendant's constitutional right and
the necessities of the case. People v. Lofton, 194 Ill. 2d 40,
740 N.E.2d 782 (2000). Accordingly, a defendant's "presence" via
closed circuit television is constitutionally acceptable under
certain circumstances, unless the defendant's presence has a
reasonably substantial relation to the fulness of his opportunity
to defend against the charge. Lofton, 194 Ill. 2d 40, 740 N.E.2d
782.
In this case, we cannot say that the conduct of the evidence
deposition of Ruth Livengood violated defendant's constitutional
rights, even though the deposition was not conducted within
defendant's actual physical presence. The witness was of
advanced age and physically unable to leave her home without
assistance. She suffered from high blood pressure; she had an
aneurysm requiring repair; and she was attached by tubes to a
supply of oxygen. Moreover, defendant was unwilling to continue
the trial to a date after the witness's surgery.
In order to strike a proper balance between defendant's
right to confront the witness and the State's need to preserve
the witness's testimony despite her fragile medical condition,
arrangements were made for defendant to participate in the
evidence deposition electronically from a police van parked
outside the witness's apartment. Accommodations for defendant's
"presence" included the use of one-way closed circuit television
12 and cellular telephones to facilitate contemporaneous
communications between defendant and his attorney. The record
shows that defense counsel conducted a vigorous cross-
examination, and defendant was able to hear the witness and
observe her demeanor throughout her testimony. The record also
shows that defense counsel conferred with defendant during the
deposition both electronically and in person.
We hold that the record adequately demonstrates both that
defendant's "presence" by closed circuit television was necessary
and that the arrangements made in this case adequately preserved
the essence of effective confrontation. See Lofton, 194 Ill. 2d
40, 740 N.E.2d 782. Accordingly, we reject defendant's
constitutional challenge to the procedure for obtaining the
evidence deposition, as well his claim that the trial court
abused its discretion in admitting the video-recorded deposition
into evidence at trial.
3. Admissibility of Caller ID Readouts
Next, defendant contends that the trial court abused its
discretion in admitting evidence of the telephone numbers
displayed on caller ID devices in the Moser residence and the
administrative office of the Tazewell County jail. Defendant
argues that no evidence was introduced to show that the caller ID
devices were reliable. We disagree.
The admissibility of caller ID evidence was considered by
13 our supreme court in People v. Caffey, 205 Ill. 2d 52, 792 N.E.2d
1163 (2001). There, the court ruled that the required foundation
for such evidence was proof that the caller ID device was
reliable. The court stated that reliability must be determined
on a case-by-case basis. Where testimony established that the
same number always appeared for the same caller, reliability was
sufficiently proved to allow testimony regarding the content of
the telephone conversation. Caffey, 205 Ill. 2d 52, 792 N.E.2d
1163.
In this case, Jean Moser testified that, after the first
call she accepted from the Tazewell County jail on July 1, 2003,
she checked her caller ID device before answering each subsequent
call. She testified that every time a friend called, that
person's number was displayed on the caller ID. Every time she
received a call from 353-9967 and accepted charges, she heard the
same voice she had heard on July 1. In our opinion, this
testimony adequately established the reliability of Moser's
caller ID device. See Caffey, 205 Ill. 2d 52, 792 N.E.2d 1163.
The foundational evidence for admission of readout evidence
from the county jail's caller ID device consisted of Detective
Stoecker's testimony that the administrative offices' caller ID
device was working properly at the time the case was under
investigation. He also stated that there had been no problems
with the device. Stoecker said that he used the device to verify
14 the number that would appear on the caller ID when a call was
made by a correctional officer from the same telephone defendant
had used when Moser received a call from 353-9967 on July 3. The
number that was displayed on the administrative office's caller
ID device was 353-9967. We believe that the State's foundational
evidence, while not extensive, was marginally sufficient to show
that the jail's caller ID device was a reliable indicator of the
identity of the telephone used to facilitate the offense charged
in this case. Accordingly, we cannot say that the trial court
abused its discretion in admitting the caller ID readout
evidence.
4. Defendant's Pro Se Posttrial Motion
Last, defendant seeks a remand for further posttrial
proceedings on the ground that the trial court failed to conduct
an inquiry into his pro se allegations of ineffective assistance
of counsel.
Generally, when a defendant presents a pro se posttrial
claim of ineffective assistance of counsel, the trial court
should first examine the factual basis of the defendant's claim.
People v. Moore, 207 Ill. 2d 68, 797 N.E.2d 631 (2003). If the
trial court determines that the claim lacks merit or pertains
only to matters of trial strategy, then the court need not
appoint new counsel and may deny the defendant's motion.
However, if the allegations show possible neglect of the case,
15 new counsel should be appointed. Moore, 207 Ill. 2d 68, 797
N.E.2d 631. The operative concern for the reviewing court is
whether the trial court conducted an adequate inquiry into the
defendant's allegations. People v. Johnson, 159 Ill. 2d 97, 636
N.E.2d 485 (1994). During this evaluation, some interchange
between the trial court and trial counsel regarding the facts and
circumstances surrounding the allegedly ineffective
representation is usually necessary to assess what further
action, if any, is warranted on the defendant's claim. Moore,
207 Ill. 2d 68, 797 N.E.2d 631.
In this case, the State concedes that the trial court erred
in declining to make any inquiry into defendant's pro se claims
of ineffective assistance of counsel. Case law supports
defendant's request for further posttrial proceedings.
Accordingly, we grant defendant's request and remand the cause
for an inquiry into his pro se posttrial claims of ineffective
assistance of counsel.
CONCLUSION
For the reasons stated, the judgment of the circuit court of
Tazewell County is affirmed in part and remanded in part with
directions.
Affirmed in part and remanded in part.
CARTER and LYTTON, JJ., concur.