             NOTICE
                                       2014 IL App (5th) 130150
 Decision filed 12/03/14.   The
 text of this decision may be              NO. 5-13-0150
 changed or corrected prior to
 the filing of a Petition for
 Rehearing or the disposition of               IN THE
 the same.

                                   APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,        )     Appeal from the
                                            )     Circuit Court of
      Plaintiff-Appellee,                   )     Jackson County.
                                            )
v.                                          )     No. 10-CM-178
                                            )
JAMES JAMISON,                              )     Honorable
                                            )     William G. Schwartz,
      Defendant-Appellant.                  )     Judge, presiding.
________________________________________________________________________

      JUSTICE SCHWARM delivered the judgment of the court, with opinion.
      Presiding Justice Cates and Justice Chapman concurred in the judgment and
opinion.

                                           OPINION

¶1       The defendant, James Jamison, appeals from his conviction for obstructing a peace

officer. For the reasons that follow, we reverse and remand for further proceedings.

¶2                                      BACKGROUND

¶3       On March 4, 2013, a Jackson County jury found the defendant guilty of

obstructing a peace officer (720 ILCS 5/31-1(a) (West 2010)). The underlying charge

alleged that on April 5, 2010, the defendant had knowingly obstructed Officer Zachary

Street's investigation of a domestic disturbance by ignoring his commands to open the


                                                 1
door to 619 North Springer in Carbondale so that he could speak with the reported victim,

Chelsea Burg. The evidence adduced at trial established the following.

¶4       On April 5, 2010, at approximately 3 p.m., the Carbondale police department

received a 9-1-1 call from Debra Wiseman, who was in Florida at the time. Wiseman

reported that her daughter, Chelsea Burg, had called her stating that Burg's boyfriend, the

defendant, was drunk and "cutting her things up." Wiseman also reported that Burg was

"not answering her phone now." Wiseman advised that Burg resided at 619 North

Springer and that Burg's newborn baby was also present in the home, "screaming its head

off."

¶5       Officer Zachary Street of the Carbondale police department was dispatched to

respond to the reported domestic disturbance on North Springer and was one of the first

officers to arrive. Pursuant to departmental policy, Street's intention was to speak with

all parties involved to "basically ensure everybody was okay." When Street approached

the residence and knocked on the door, the defendant came to the door but did not open

it.     When Street advised the defendant why the police were there, the defendant

confirmed that Burg and her baby were inside but stated that they were neither coming to

the door nor going outside. While Street and the defendant talked through the door, the

defendant repeatedly refused to open it, and Street could not hear or see Burg or her baby.

Because Street was unable to make contact with them, "the situation changed," and he

feared that they were possibly hurt or dead.

¶6       Additional officers and "command staff" soon arrived at the scene, and a perimeter

was set up around the house. A hostage negotiator spoke with the defendant by phone for
                                          2
over an hour, but she was unable to convince him to allow Burg and the baby to exit the

residence. The defendant sounded "very angry" and agitated, and the negotiator "felt that

[the defendant] was probably going to harm [Burg,] or he already had."

¶7     The police ultimately obtained a search warrant to enter the residence at 619 North

Springer. At approximately 5:25 p.m., after the defendant refused to open the door so

that the warrant could be executed, officers forced entry into the home. The defendant

was found sitting in a chair in the living room, and Burg and her baby were found in a

back bedroom unharmed. The defendant was subsequently arrested and charged with

obstructing a peace officer.

¶8     After entering judgment on the jury's verdict, the trial court sentenced the

defendant to a 12-month term of probation. On March 29, 2013, the defendant filed a

timely notice of appeal.

¶9                                   DISCUSSION

¶ 10   On appeal, the defendant raises numerous issues, but we need only decide two:

whether the trial court's failure to strictly comply with Supreme Court Rule 401(b) (eff.

July 1, 1984) requires a reversal of his conviction and whether the evidence adduced at

trial was sufficient to support the jury's finding of guilt. We answer both questions in the

affirmative.

¶ 11   In June 2012, following a case-management conference, the trial court entered a

written order stating that the defendant had advised the court that he wanted to represent

himself. The order stated that the court had determined that the defendant understood

that he had the right to an appointed attorney and that he did not have to pay the attorney
                                             3
who had been appointed to represent him. The order further stated that the court had

determined that the defendant had knowingly and voluntarily waived his right to an

appointed attorney. The trial court thus discharged appointed counsel, and the defendant

subsequently proceeded pro se. On appeal, the defendant argues that his conviction must

be reversed because the trial court failed to strictly comply with Rule 401(b)'s

requirement that a defendant's waiver of counsel must be recorded verbatim. We agree.

¶ 12   "The right to counsel is a cornerstone of our criminal justice system." People v.

Black, 2011 IL App (5th) 080089, ¶ 11. "The right to counsel is fundamental and will not

be lightly deemed waived." People v. Stoops, 313 Ill. App. 3d 269, 273 (2000). "[T]he

right to counsel is so fundamental that we will review as plain error a claim that there was

no effective waiver of counsel although the issue was not raised in the trial court."

People v. Herring, 327 Ill. App. 3d 259, 262 (2002).

¶ 13   A defendant's waiver of counsel is governed by Supreme Court Rule 401, which

provides as follows:

              "(a) Waiver of Counsel. Any waiver of counsel shall be in open court. The

       court shall not permit a waiver of counsel by a person accused of an offense

       punishable by imprisonment without first, by addressing the defendant personally

       in open court, informing him of and determining that he understands the

       following:

                       (1) the nature of the charge;




                                               4
                     (2) the minimum and maximum sentence prescribed by law,

              including, when applicable, the penalty to which the defendant may be

              subjected because of prior convictions or consecutive sentences; and

                     (3) that he has a right to counsel and, if he is indigent, to have

              counsel appointed for him by the court.

              (b) Transcript. The proceedings required by this rule to be in open court

       shall be taken verbatim, and upon order of the trial court transcribed, filed and

       made a part of the common law record." Ill. S. Ct. R. 401 (eff. July 1, 1984).

¶ 14   Although substantial compliance with Rule 401(a) may be sufficient to effectuate

a valid waiver of counsel (People v. Haynes, 174 Ill. 2d 204, 236 (1996)), trial courts are

required to strictly comply with Rule 401(b) (People v. Herring, 327 Ill. App. 3d 259,

261-62 (2002); People v. Montgomery, 298 Ill. App. 3d 1096, 1098-1100 (1998)). "The

language of Rule 401(b) is clear and unambiguous: it mandates that, when the defendant

waives the right to counsel, the proceedings must be recorded verbatim." Montgomery,

298 Ill. App. 3d at 1099. Rule 401(b)'s verbatim requirement "is for the benefit of the

defendant as well as the trial court" and may be accomplished via court reporter,

audiotape, or videotape. Id. at 1099-1100.

¶ 15   Here, the record indicates that before accepting the defendant's waiver of counsel,

the trial court determined that he understood and knowingly waived his right to an

appointed attorney and wished to proceed pro se. It is undisputed, however, that the

proceedings were not transcribed or otherwise recorded verbatim. The State rightfully

concedes that the trial court thus failed to comply with Rule 401(b).           Under the
                                          5
circumstances, the defendant's waiver of counsel was ineffective, and his conviction must

be reversed. Herring, 327 Ill. App. 3d at 262; Montgomery, 298 Ill. App. 3d at 1100.

¶ 16   Given our disposition, we need not address the defendant's remaining claims of

error. Black, 2011 IL App (5th) 080089, ¶ 28. To avoid any concerns of double

jeopardy, however, we will address his argument regarding the sufficiency of the

evidence underlying his conviction. Id. ¶ 29.

¶ 17   The thrust of the defendant's argument regarding the sufficiency of the evidence is

his assertion that "in order to be convicted of 'obstructing' a peace officer, a defendant

must commit some type of physical act that impedes a peace officer." The defendant thus

maintains that his "passive" conduct in the present case is insufficient to sustain his

conviction as a matter of law. See People v. Cope, 299 Ill. App. 3d 184 (1998); People v.

Hilgenberg, 223 Ill. App. 3d 286 (1991). In People v. Baskerville, 2012 IL 111056, ¶ 29,

however, our supreme court held that "the offense of obstructing a peace officer under

section 31-1(a) of the Code does not necessitate proof of a physical act." The court

further held that "[a]lthough a person may commit obstruction of a peace officer by

means of a physical act, this type of conduct is neither an essential element of nor the

exclusive means of committing an obstruction." Id. ¶ 23. "The legislative focus of

section 31-1(a) is on the tendency of the conduct to interpose an obstacle that impedes or

hinders the officer in the performance of his authorized duties," which is an inquiry for

the trier of fact "based upon the facts and circumstances of each case." Id.

¶ 18   Here, viewing the evidence adduced at trial in the light most favorable to the State,

a rational trier of fact could conclude that Street's investigation of the reported domestic
                                              6
disturbance at 619 North Springer was an authorized duty that the defendant impeded or

hindered. See City of Champaign v. Torres, 346 Ill. App. 3d 214, 217 (2004). "Because

the evidence was sufficient to convict the defendant, double jeopardy does not preclude

the defendant's retrial." People v. Liner, 356 Ill. App. 3d 284, 300 (2005).

¶ 19                                CONCLUSION

¶ 20   For the foregoing reasons, we hereby reverse the defendant's conviction and

remand for further proceedings.



¶ 21   Reversed and remanded.




                                             7
                               2014 IL App (5th) 130150

                                    NO. 5-13-0150

                                        IN THE

                          APPELLATE COURT OF ILLINOIS

                                   FIFTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,      )   Appeal from the
                                          )   Circuit Court of
      Plaintiff-Appellee,                 )   Jackson County.
                                          )
v.                                        )   No. 10-CM-178
                                          )
JAMES JAMISON,                            )   Honorable
                                          )   William G. Schwartz,
      Defendant-Appellant.                )   Judge, presiding.
__________________________________________________________________________

Opinion Filed:        December 3, 2014
__________________________________________________________________________

Justices:           Honorable S. Gene Schwarm, J.

                 Honorable Judy L. Cates, P.J., and
                 Honorable Melissa A. Chapman, J.,
                 Concur
__________________________________________________________________________

Attorneys        Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy
for              Defender, Richard J. Whitney, Assistant Appellate Defender, Office of
Appellant        the State Appellate Defender, Fifth Judicial District, 909 Water Tower
                 Circle, Mt. Vernon, IL 62864
__________________________________________________________________________

Attorneys        Hon. Michael Carr, State's Attorney, Jackson County Courthouse,
for              1001 Walnut Street, Murphysboro, IL 62966, Patrick Delfino, Director,
Appellee         Stephen E. Norris, Deputy Director, Whitney E. Atkins, Staff Attorney,
                 Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois
                 Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864
__________________________________________________________________________
