                         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


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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.


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     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


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     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


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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,


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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


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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.




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