People v. Rohlfs

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People v. Rohlfs

State: Illinois

Court: 3rd District Appellate

Docket No: 3-05-0272 Rel

Case Date: 11/17/2006

Preview:No. 3--05--0272 _________________________________________________________________ filed November 17, 2006. IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2006 THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) 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. further proceedings. FACTS On July 1, 2003, defendant was a resident of the Tazewell We remand for

County jail on charges unrelated to the offense in this case. that date, 72-year-old Jean Moser received a collect telephone call from the Tazewell County jail.

On

The caller addressed Jean as He told Jean he Jean, who

"Aunt Jean" and identified himself as "Steve."

needed $3,000, because his car had been repossessed.

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 Jean's sisters' names

numbers of "Aunt Lois" and "Aunt Marilyn." 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 Keith informed

himself as "Steve," and asked to speak with Jean. the caller that Jean was not at home.

He immediately knew that When

the voice was not that of Jean's nephew, Steve Sumner.

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 The Mosers then

not at home, but would return in an hour.

arranged for the Morton police to come to their home to record the conversation if the caller telephoned again. 2 Morton police

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. $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 Ruth's only He said another lady would mail her a check to cover the

said, "You mean you don't recognize your grandson?"

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. 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, The

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 On December 27, 2004, DHS

Human Services (DHS) for treatment.

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. 2005. On February 1, 2005, defendant moved for substitution of counsel. He claimed that attorney Wertz had refused to give him The court set the cause for trial to begin February 28,

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. That request is denied. The Court has

THE COURT:

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. advisement. On February 23, 2005, Ruth Livengood's deposition was taken in her home. Livengood was seated in an easy chair. She had The court took the matter under

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. trial. Attorney Wertz also filed a motion for new

Prior to sentencing, the court denied the motion filed by The court

Wertz without addressing defendant's pro se motion. 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 selfrepresentation and then grant his request to proceed pro se. 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); We

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. 1073, 567 N.E.2d 642 (1991). People v. Ward, 208 Ill. App. 3d 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. Fritz, 225 Ill. App. 3d 624, 588 N.E.2d 307 (1992). In this case, the record discloses that defendant engaged in 8 People v.

obstructionist conduct by repeatedly filing ill-conceived pretrial pleadings and disregarding the court's admonitions to speak through his attorney. to represent himself. He also equivocated on his request

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. the court appoint new counsel for him. Defendant requested that 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 selfrepresentation 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 People v. Lobdell, 172 Ill. App.

abuse-of-discretion standard.

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. 1970, art. I,

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