fifteen one thousand five hundred and ninety nine the people v mark shelling will the parties are going to argue the case please approach the podium identify yourselves and who you represent and indicate to the court how much time you would like to argue your case my name is debra pew and i represent the appellant mark schelling for the office of appellant defender i would like to leave some time for rebuttal about ten minutes for rebuttal how much do you want for argument let's say let's say twenty minutes and we'll see how it goes very well hi i'm the assistant state's attorney veronica calderon malavia i represent the people in the state of illinois and i'll be asking for my allotted time very well now remember the microphone is for recording purposes not for amplification so if you want to be heard by all your fans in the audience keep your voice up please will do ms pew good afternoon may it please the court my name is debra pew and i represent the appellant mark schelling my plan is to only discuss arguments one and two and so if this court has any questions related to the other arguments of course i'll be happy to answer those so there are two different sets of two different but intertwined sets of improper evidence that deprive mark shelling of a fair trial the evidence that was the other crimes evidence and evidence that was actually elicited against him by his own attorney this improper evidence combined could undermine any confidence that could be had in this case because of these two errors this court should vacate his convictions and remand for a new trial now first as for the other crimes evidence now there are a lot of charges in this case and becomes very confusing and jumbled so i'm just going to talk briefly about those so that we all know where we are so there were twenty one different charges in this case all of them related to contact by phone whether it was calls or texts sometimes when mr schelling was under was subject to an order of protection and as the state acknowledges these were all of those charges alleged just verbal threats so there was case six thousand eight hundred and ninety eight as they call it that was fourteen different counts mostly in two thousand and two or two thousand and twelve going into two thousand and thirteen it was harassment of a witness by telephones to aggravated stalking by telephone texting and that kind of thing and then with case twelve thousand and fourteen these were seven charges all related to contact on one day april 11th two thousand and thirteen it was also kind of harassment of a witness and contact by telephone harassment by telephone now the other crimes evidence in this case was of a completely different nature whereas the state acknowledges that all the charges here were just verbal threats the other crimes evidence was a was of a completely different sort this involved breaking into the complainant's apartment or slashing her tires these were inperson violent offenses and so the first of the first spot of other crimes evidence was alleging that mark shelling broke into the complainant's apartment she said that he was trying to steal her television and also that he threw a bottle of wine at her injuring her and the other piece of other crimes evidence was for about a month later that he allegedly slashed all the tires in on her car and then left the knife protruding from one of the tires so these were sort of very violent and in person and scary and as the state was this event before or after either indictment oh this this was all of these were before the other crimes evidence was for that indictment in fact the state actually they did indict him on the two counts of other crimes evidence but it seems but then they eventually dropped the case they were unable to produce any evidence related to either of these to either of these events or to produce the witness that they alleged existed and so so it was so so he was first indicted on those and then he was indicted on the crimes in six thousand eight hundred and ninety eight but there was a lot of overlap so count seven happened before the other crimes evidence the first set of crimes evidence then there was count eight then other crimes evidence and then everything else so it was sort of intertwined in terms of time now there's the other crimes evidence was wrongly admitted both because of its lower probative value and it's highly prejudicial nature so i mean the proximity of the time is there in terms of looking at probative value there's no denying that what what effect does the fact there was a bench trial have on your argument well it does have an effect of course because there's there's a slightly different approach to it if there's a bench trial but here as the couple of the cases for this set with alpha service that if the judge relies on the other crimes evidence that's wrongly admitted and in there the uld the illinois supreme court was saying if the if the defense objects to the admission of certain evidence and the court so allows you can assume that the court relied on it and here the court did rely on it and one of the things that's important remember here what indication is there in the record that the judge may have relied on the other crimes evidence for an improper purpose for propensity and actually propensity because it was because this was a domestic violence case propensity actually would not be an improper purpose and so they were actually admitted for that reason so so even if he did do that what's in the record to show that the judge actually relied on an improper what happened in this case is that there was such a jumbo of different charges and so you're saying what you have is some comment from the judge well there were especially at a bench trial there were comments from the judge indicating that he didn't differentiate between the actual charges that issue and the other crimes evidence so the state really focused on the other crimes evidence at trial so much so that they didn't even elicit evidence related to thirteen of the fourteen charges against him one of the cases and then the sort of confusion came came to a head when the judge was finding by showing guilty i get back to that that confusion but this was a case that one judge ruled on the motion and then the trial judge heard it at trial right well what happened was first one judge ruled on it and said and then the other judge was actually given another opportunity to rule on it as well so it was actually ruled on twice and then the second judge went to trial so when the first judge was ruling on it and he said this probably meets the threshold of donahoe and but but he said that any concerns about dissimilarity of prejudice goes to weight not admissibility but in fact he was required to make a meaningful assessment of prejudice and then the second judge when looking at whether whether or not the evidence should be admitted he said a couple of things that were sort of concerning one of the things that he said that he said that it's generally admissible in this type of case not in this case but sort of saying it's generally okay to allow the context but then he put some restraint that made it seem that he didn't actually that he hadn't done the proper analysis of prejudice he said that this evidence is violent other crimes evidence would help the defense as well and it's very difficult to imagine how when you're talking about all those telephone charges how it was violent inperson other offenses could help the defense and so that suggests that he did not engage in a meaningful prejudice analysis that he was required to and then in filing rochelle and guilty there was a sort of canoodling of of discussions of the other crimes evidence and evidence of the actual charges now when he made his ruling on the admissibility was that before or after the testimony came in at trial it was before the testimony came in at trial and so he had he had said he had just been assigned to the case he said there are a lot of pleadings i've talked to i've talked to the attorneys but it was actually unclear from the record that he was aware of what exactly the other crimes evidence was in relation to what the charge offenses were but the objection could have been reraised after he heard it if there was a concern as to his understanding of the prior judge's ruling and but frankly even if he didn't understand that the prior judge ruled and then he heard it the the prior judge ruled on it but but really didn't properly lay prejudice and even if and even if he had he had awaited but this is still this was this is not a preserved issue and it's still amounts to plain error because of the negative effect of this and this improper evidence of trial because of its prejudicial nature so to whatever degree the judge did engage in analysis his conclusion was incorrect given the nature of the evidence that was the of the other crimes evidence and then the way that the judge in finding showing guilty relied on it exacerbated any harm of the admission of the other crimes evidence isn't oh i'm sorry no go ahead isn't that all kind of speculative as to the judge's decisionmaking process well to whatever he spoke on the record i mean the record sort of rebuts the idea that he didn't that he didn't rely on it because one of the things that he says in finding shelling guilty he reads aloud four text messages two of those text messages are tied to dates for which shelling was actually acquitted so presumably the judge wasn't relying on those and finding him guilty because they acquitted him with those two charges then there was a text message that wasn't tied to any data at all and then there was a very abusive text message related to the tire issue which was the other crimes evidence and so if he's focusing on his text messages two of which the client was acquitted and then one of which wasn't tied to any date presumably he's focusing on the other crimes evidence it was the same as talking about the wine shelling breaking into the apartment allegedly and throwing a bottle of a wine with the complainant that was one of the judge making the ruling was very terse and so he really didn't say very much about why he was making these findings but everything that he said went back to the other crimes evidence and so we talked about other kinds of evidence and also to go into issue two also evidence elicited by defense council but it talked about how shelling broke into the apartment and threw the wine bottle and he was very disturbed by the violent nature of that offense which was not one of the crimes that was actually an issue he was really focusing on that in order to find shelling guilty of these nineteen other offenses for which he was found guilty and so because he because of the crimes evidence being so dissimilar and so much more prejudicial given both the nature and the extremity of what they're like it was plain error to introduce these other crimes first the evidence was close to the balance as the state assume for a moment that we find that the other crimes have been admitted the next question is whether or not the evidence was harmless beyond a reasonable doubt so let's kind of move through the analysis of okay well i mean i was because this evidence wasn't because the issue wasn't preserved i was sort of going straight to sort of looking at close the balance and plain unfit for a trial but in terms of being harmful it was definitely harmful because of the way the judge relied on it at in finding shelling guilty he didn't talk about the evidence that was specifically related to these phone calls he didn't talk about the things that the state was actually intending to prove and guilty of we talked about these text messages and he talked about him throwing the wine bottle that was really the focus of his finding and so the focus of his fighting was on this other crimes evidence so assuming it was wrongly admitted the harmless it was it was not harmless because of the way the the judge relied on it and the defense counsel failed to preserve this issue and so to argue it as plain error under both prongs first the evidence was closely balanced as the state acknowledges in its brief by citing the evidence that was elicited by defense counsel the state did not elicit very much evidence against mark shelling in this case but in fact most of the most damaging evidence was elicited by his own defense counsel and additionally to whatever degree this comes down to an issue of credibility the complainant had very serious credibility issues so the relationship between the complainant and mark shelling went on from two thousand and ten to two thousand and eleven and it involved a lot of money going one way that mark shelling was loaning her money or getting her money it's sort of unclear what was exactly happening but after they broke up he filed a civil lawsuit against her attempting to get the money back and then and then it was only after she was served in that civil lawsuit six days later that she brought this charge against him when it dates prior to when the civil lawsuit was brought but she was sort of sitting at any complaints that she might've had and then once the civil lawsuit happened then she decided to complain about these these alleged incidents and mark's prior lawyer said that the complainant told him none of this would be happening if mark hadn't sued me and she also claimed to not know anything about a settlement agreement that her attorney had drafted saying that she would drop the cases against him if he dropped a civil lawsuit and and she also came up with a lot of things on the stand that the state had clearly never heard of for instance that she claimed that she had a videotape showing mark breaking the front door of her condo building but that she personally decided not to show the police or the state's attorney because she decided it wasn't pertinent and so not only was the evidence closely balanced it's typically a violation of the defendant's right to a fair trial whenever whenever other crimes evidence is improperly admitted and so because this other crimes evidence sort of loomed so large over the case in terms of all the questions the state was asking to the complainant the opening argument the closing argument and the judge's finding this court should should remand for new trial on all of his charges because they were so infected by the other crimes evidence and all of that is sort of tightly wound with what kelvin's counsel did in this case now the state concedes that this that the prosecutors in this case really didn't provide much specific evidence about the twenty one charges that they brought against against mark shelling and in fact majority of evidence was brought was was elicited by defense counsel the state asked him asked the complainant some very vague questions and there was a flurry of dates and allegations that tie him to specific dates to the indictment so the state brought these twenty one charges but was asking about some of them involved ranges of dates but the state was asking about ranges of dates that were not even in the indictment and actually only asked her about two specific phone calls that were directly tied to the indictment and that was count ten of six thousand eight hundred and ninety eight and then the call that was an issue in the other case the defense council your claim's getting short okay the defense council reaching the breach and filled in all the gaps and elicited all of his testimony from the from the complainant in order to prove him guilty of all these offenses what about the state's argument that it it was a a trial strategy strategy yeah well if it was a trial strategy the time to stop that strategy would be at the time that you realize oh wow i just proved my client guilty but count against him he started out with one and then i think any competent attorney would then say i better try a different strategy i also had a better stop asking questions like did he call you on august 8th yes or no rather than asking a question like if he was actually trying to prove that she had very little recollection he could have asked the question like describe anything that happened between you and mark shelling in august two thousand and twelve and so she would have had to explain what happened on that date instead he asks her these very leading questions did he call you on august 8th how many times twenty to fifty boom that charge assuming credibility that charge is approved and it went on like this for thirty pages it was after twenty pages of this that he proved his own client guilty of two class two felonies that the state had not even asked or worried about instead of relying on you know what counselors were sorry do you know what counselors were that you just said the two oh the two yes it was count ten in six thousand eight hundred and ninety eight and then it was actually all seven counts was i'm sorry was count ten in the first case six thousand eight hundred and ninety eight which was harassment by phone after an order of protection had been had been imposed against mark shelling and then also all of the counts in twelve thousand and fourteen because those were all related to one specific phone call and so it was about those two phone calls the one on april 11th and the one on september 25th so for all of those reasons i would ask that this court reverse mark shelling's convictions in remand for a new trial thank you very much thank you again good afternoon i'm cook county assistant state attorney veronica calderon malavia representing the people the state of illinois yeah this defendant has not shown that the introduction of other crimes evidence was error much less plain error this case was about a past domestic relationship and a continuous series of crimes the defendant committed against the victim after their breakup but this case was also about defendant's theory of defense where he claims that the victim made up these crimes in order to force or blackmail defendant to draft a civil lawsuit that he filed against her so both the defendant's past crimes and the victim's past acts where the heart of this case and were both relative uh relevant and probative specifically the defendant's other crimes it was they were relevant on several grounds first they were a part of a continuing narrative that led to the instant charges in fact the other crimes were the underlining basis for the order of protection the defendant was charged here with violating second they spoke to defendant's state of mind he didn't stop with property crimes but he continued to call harass the victim his case this case this was not about him getting his money back because he he could have relied on his civil lawsuit for that his conduct other crimes show that his conduct was designed to harass the victim after she would not have any more contact with him the other doesn't the law require the trial judge to engage in a meaningful analysis here yes it does and the defendant had the benefit of two trial judges reviewing his objection to the other crimes and the record clearly indicates that the meaningful lane of what did you understand it to mean when the trial judge said it will help the defendant well like i said this is well he definitely the defense counsel definitely used the timing of the other crimes to support his theory what did you understand the judge to mean when he said that it would help the defendant defendant used the timing the dates of the other crimes because they occurred before they occurred right after she was served with with a civil lawsuit and to support his theory that she just made things up in order to avoid paying him in the in the lawsuit so the other crimes evidence also speaks to the victim's state of mind because defendant had previously crossed the line between you know verbal aggression to physical aggression it was reasonable for her to fear for her safety and for her to suffer emotional distress through these telephone calls in which he threatened to hurt her or kill her it explains why i should repeatedly call the police why she was constantly in guard changing her routes her route to work and and also explained why she was concerned for her parents and since the other crimes evidence speaks to both defendant's intent and the state's the victim's state of mind they were relevant in as i stated rebutting defendant's theory of defense what about the court saying that it goes to the weight as opposed to the admissibility i think the court was referring to that with respect to defense counsel's objection to the lack of evidence corroborating these two incidences and was not referring to weighing the the the prejudice versus the permanent value the first judge who considered it looked at it's been stated that the other crimes evidence complies with the threshold requirement in the statute and donahoe and both mandate that the court weigh the probative value against the prejudicial value indicating that the first trial judge did too and the second judge explicitly stated that this was more probative than prejudicial and i don't understand is why would the state's attorney office indict the defendant for these offenses drop the charges and then use them in a potentially prejudicial way in a case where they have two more indictments pending i mean well that's not why would the state insist on injecting a potentially reversible error into a trial where they have all this evidence of twenty one incidences of telephone harassment texts conclusions i mean what's the point well what is in the record is a road misdemeanor counts charge and they were elevated to a felony it's not in the record that there were cha underlining which were misdemeanors there were charged as felonies they were the record supports the fact that they were charged as misdemeanors and they were later upgraded after defendant kept incessant you know consistently harassing and calling the victim and other crimes evidence it's not injecting it's not injecting reversible error because well it is when the crimes are so dissimilar that the prejudicial effect far outweighs the probative value that that's the problem the statute at issue here as well as common law requires a general similarity especially when modus operandi is not is not at play and that is not a play here and we it totally meets the general similarity requirement of the statute and common law there was the same victim it had they all occurred after the breakup and they're all forms of aggression you know whether it's verbal aggression or visible physical aggression aimed at intimidating the victim because she would refuse to have any more contact with him so when we look at the record it was properly considered and nor was there any nor was it improperly focused on by the state or or the trial judge the state merely put it on first because it occurred first and the text was introduced because regarding to the tires because the texts connected the defendant to the slashing of the tires the victim did not see that the incident and there's also nothing in the record to show that the trial court improperly considered this considered this in fact this is a bench trial and is presumed that the judge follow the law and consider the other crimes evidence for only its limited purpose and there's affirmative evidence in the record that he did so the trial judge acquitted defendant on two of those counts so therefore he did not blindly and look at other crimes evidence what that shows is that he looked at the evidence as to each count and determined whether defendant was guilty or not and so your honor there was no absolutely no abuse in this case and we ask that you affirm the trial court's ruling what's your position on the defense attorney proving the defendant guilty beyond a reasonable doubt six or eight counts where the state presumed presented no evidence to support those counts for their crossexamination defense lawyer did on that on that i will concentrate on the counts one through six because we've conceded that the other counts are merged and defendant's whole ineffective assistance of counsel claim is based on the allegation that the state did not present any evidence that he committed the offenses one through six which were covered by which covered the dates between november 26th two thousand and twelve which case are you talking about one through six and and indictment one which is he only raises an effective counsel indictment one which counsel referred to as sixty eight six thousand eight hundred and ninety eight mmhmm right the ineffective only focuses on that indictment okay so counts one through six cover the dates between november 26th two thousand and twelve and march 10th two thousand and thirteen it's not accurate that there was more evidence submitted by the state although i missed it in my brief i admit on page thirty five of the record the state asked he trained november 7th two thousand and twelve and november twenty six of two thousand and twelve how many times did defendant call you i'll quote first quote the victim answered hundreds and she also stated that the calls were becoming progressively more scary and threatening what this means is that the state elicited undirect the defendant made threatening calls on november 26th two thousand and twelve and that's one of the dates covered in counts one through six so because there was some evidence that the state elicited such evidence during the direct examination of the victim it was reasonable for defense counsel to ask about this period of time since it dealt with the most serious allegations in the indictment the defense counsel record shows that counsel pushed the victim and asked specific questions in order to challenge the credibility her truthfulness and her motive especially where the victim at times was vague and imprecise this was sound trials strategy but even if this court finds that it was a mistake in asking these specific questions it was still not it was still not constitutionally deficient defense counsel did not just elicit damaging evidence and move on for no tactical reason he challenged that evidence he tied his questions about november 26th two thousand and twelve and march 10th two thousand and thirteen to his theory of defense that the victim fabricated these charges against him to force him to drop his civil suit again it was the record shows that immediately after asking the victim about these time periods defense counsel pursued a line of questioning that he attempted to connect these calls bad calls which the victim attributed to the defendant to three zero nine numbers that were linked to the victim's childhood friend nick and his company and incidentally defense counsel also presented a witness to attempt to promote this theory about calls and if you look at the closed defense counsel's crossexamination he got the victim to admit and share received thousands of dollars from the defendant the victim was forced to explain why a defendant's checks have the word loan written on them she was also forced to explain a promissory note that she allegedly signed a document that she drafted and that she signed and drafted where defendant would promise not to sue her and pay or ask for his money back and he also district has explained a draft or a draft of settlement agreement that was prepared for the attorney and finally a defense counsel also presented a witness that witnesses who attempted to establish that defendant could not have called the the victim on november 26th two thousand and twelve so if we look at the record there's plenty of evidence that counsel elicited the challenge for victim's credibility and and this was a reasonable trial strategy is the evidence closely balanced i would say no the evidence is not closely balanced true that there are two different accounts here but the piece of the strongest corroborating piece of evidence in this record is the april the defendant's the recording of defendant's call to the victim in april of two thousand and thirteen where he's heard aggressively demanding to listen to his gutless her gutless parents he wanted to talk to her gutless parents right that call occurred after the order of protection it occurred after defendant was repeatedly arrested for illegal contacting the victim it occurred after misdemeanor charges it occurred after the falling of the first indictment that strongly corroborates that her testimony the defendant calling her was truthful and it strongly rebuts defendant's theory of defense so that strong piece of evidence takes this case out of the closely balanced prompt well but even if it's i'm sorry go ahead no go ahead even if the evidence is not closely balanced our analysis also requires us to look at the seriousness of the error with respect to in terms of the admission of the other crimes evidence is just here's just mentioned you had a tons of information that you were able to use at trial you didn't even need the other crimes evidence oh i disagree as i stated it was relevant to establish her state of mind of how she reacted it was relevant to to rebut his theory of defense that it was just about money and about her not having to pay him money back i think it was very relevant and and and there was no abuse of discretion but going back to defense council's performance this is his performance was totally unlike the cases that defendant cites to well could you just and i'm sorry to interrupt you but counts in case six thousand eight hundred and ninety eight counts nine eleven twelve thirteen and fourteen was there any did the state provide any evidence other than nine eleven twelve thirteen and fourteen okay on count nine right i would look to the record on direct right twenty no i think twenty six through twenty seven she asked a question between about calls from june 7th two thousand and twelve to september 25th two thousand and twelve what's the other account nine eleven okay count eleven direct there's testimony of calls on page y thirty four and eleven on twelve there november twenty six was discussed on y thirty five and what other count the only twelve thirteen and fourteen okay twelve block the data discussion of black calls on a direct on thirty five and count thirteen there was no direct with respect to that however november twenty six and that date ranges between november 26th two thousand and twelve to march 10th two thousand and thirteen and on page thirty five undirect the victim testified that she got her harassing calls during november 26th two thousand and twelve the only count there was another count that there was no direct evidence was count seven which defendant was found not guilty of and and and he was found not guilty because that only was a nondirect the text messages were never tied up to that date she could not remember did not recall the text messages so there was no evidence i direct her across to tie to october twenty 21st two thousand and eleven so this case is different than the case of cited by defendant where attorneys they're elicited in the misspelled evidence like a police like contents of a police report or listed on challenge damaging evidence here defense counsel your honors aggressively challenged the victim's testimony her credibility and motive presented an unidentifiable theory of defense regarding all the accounts so looking at the totality of counsel's performance which strickland mandates defense counsel who was who was partially successful was not constitutionally deficient can i back just finally i'm reading the conclusion of your your reply version mmhmm and it says the people of the state of illinois respectfully request that this honorable court in thirteen cr sixty eight ninety eight reverse defendant's convictions and remand the case for a new trial that was a mistake on my part and i would ask this court to look at the content and the substance of my argument that's kind of what i thought but yeah and then so we shouldn't consider that an admission uh no so i would ask this court to consider the arguments i made today and the arguments contained in my the argument in my opening in my brief and affirm defendant's convictions in in both cases very well thank you thank you ms pew briefly so there's been a lot of talk up here about the ranges of dates in six thousand eight hundred and ninety eight and the state did ask to complainant about the range of dates of november 7th to november twenty six but the range of dates discussed here is november twenty six to march 10th there was never any specific testimony about november twenty six there was just endless range of dates march 7th to the twenty six were their calls and she said that there were but there was never anything to tie it specifically to the twenty six or certainly nothing to tie it to the 26th of november through march 10th there was just no there was no testimony whatsoever about those about about those dates and so those counts of the state did ask about the about the 7th to the 26th but that's actually not tied to any specific counts in the indictment and as for the claim that that the state started discussing the other crimes evidence first because it came chronologically that is not true count seven came before any of the other crimes evidence and then there was the first set of crimes incident then count eight then the next count next to other crimes evidence and then everything else so if the state had been trying to focus on everything chronologically in that frontloading was highly damaging violence text evidence they would have done it to they would have done it that way starting with count seven it wasn't chronological additionally order of protection was not granted until december two thousand and twelve so there was no order of protection related to the other crimes evidence that was that was admitted and there's also a suggestion that the state needed the other crimes evidence so that the defense so that so that they could prove why the complainant felt scared the complainant was not required to corroborate her own fear this is not something where we don't believe the complainant if she says she's getting these terrifying these texts these harassing calls or texts that she needs to corroborate in some way with some violence that's that's not the kind of justice system we run here and that was not necessary and there's a big difference between mark shelling sitting at home on his couch at night watching tv calling texting versus actually going out into the road and doing these violent things so even if there was a hearing on the other crimes evidence it was still extremely prejudicial and as for as for counsel's questions he could have relied on the state still to prove her guilty to prove mark shelling guilty beyond a reasonable doubt it's not that he was completely incompetent he did bring other evidence he did show the history of money but he also refused to rely on the state's requirement that they prove him guilty beyond a reasonable doubt and instead just elicited evidence this case is actually quite a bit like jackson which i cite in my brief which is a case in which defense counsels elicited one element of one offense it was i think it was two questions that are listed in that element and led to a reversal here we have thirty pages of that and so because of the highly damaging testimony that he was able to elicit as well as the highly prejudicial nature of the other crimes evidence we would ask that this court reverse on all charges and remand for a new trial very well thank you thank you thank you both for briefing an argument on this matter we'll take it under advisory