People v. Diomedes

• Decision Date: 16 June 2014
• Docket Number: No. 2–12–1080.,2–12–1080.
• Citation: 13 N.E.3d 125
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Daniel T. DIOMEDES, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

13 N.E.3d 125

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Daniel T. DIOMEDES, Defendant–Appellant.

No. 2–12–1080.

Appellate Court of Illinois, Second District.

June 16, 2014.

Alan D. Goldberg and Kathleen Weck, both of State Appellate Defender's Office, of Chicago, for appellant.

Joseph H. McMahon, State's Attorney, of St. Charles (Lawrence M. Bauer and Matthew J. Schmidt, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice JORGENSEN

delivered the judgment of the court, with opinion.

¶ 1 After a bench trial, defendant, Daniel T. Diomedes, was convicted of disorderly conduct for knowingly transmitting by e-mail a threat of violence directed against a high school dean. 720 ILCS 5/26–1(a)(13)

(West 2010).¹ On September 27, 2012, the court sentenced defendant to 30 months of probation and 365 days of electronic home monitoring. On appeal, defendant argues that we must reverse his conviction because the evidence was insufficient to establish that he knowingly transmitted a threat and because the e-mail forming the basis of his conviction was not authenticated at trial. In addition, defendant argues that, even if the e-mail contained a threat, it was not a “true threat” and, therefore, his speech was protected by the first amendment of the United States Constitution. U.S. Const., amend. I

. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On August 8, 2011, defendant was indicted for knowingly transmitting a threat of violence directed against Susan Shrader, a dean at Geneva High School, in that he transmitted an e-mail message containing a death threat in violation of section 26–1(a)(13) of the Criminal Code of 1961 (720 ILCS 5/26–1(a)(13)

(West 2010)). Defendant's motion to reduce bond was granted with numerous conditions, including that he routinely visit a psychiatrist and take his prescribed medication. Further, defendant moved to quash his arrest and suppress evidence on the basis that there was no probable cause for the arrest. The trial court, specifically Judge James C. Hallock, denied the motion.²

¶ 4 Judge Hallock also presided over defendant's bench trial, which commenced on May 24, 2012. Defendant was age 19 at the time of trial (age 18 at the time of the alleged offense). The State's first witness was Jodee Blanco, who testified that she is an anti-bullying activist and author who travels to schools around the world, sharing her personal story of bullying survival with the goal of motivating change. Blanco is not a trained counselor or psychologist.

¶ 5 Prior to April 26, 2011, Blanco presented her anti-bullying program at Geneva High School. After the program, defendant and other students approached her. Blanco has an “activist e-mail” address, “jodee@jodeeblanco.com,” that she provides to students and readers. The e-mail address links to her website, which is monitored by Blanco's staff. The staff is trained to handle the communications, but, when there are e-mails of particular urgency, the staff contacts Blanco. On April 26, 2011, Blanco was in New Orleans to give a convention address. Her staff called about “a disconcerting e-mail” and read it to her over the phone. Blanco told the staff to “immediately” forward the e-mail to her, and, once she received it, she read it on her iPhone. The State showed Blanco exhibit No. 1, which she identified as “the e-mail that was sent to me at my activist address from [defendant] that concerned my staff.” The trial court sustained defendant's objection for lack of foundation. The State then asked Blanco if the exhibit reflected the e-mail she received in April 2011, and she replied, “Oh, yes, that's the one,” and confirmed that it was “exactly the same.” The State moved to admit the e-mail, but the court sustained defendant's hearsay objection. Ultimately, the State again showed Blanco the exhibit and asked her what e-mail address the e-mail was sent to; she confirmed that it was sent to her activist e-mail address, which she provides to “anyone who needs to reach out to [her].” Blanco confirmed that the e-mail was in the same form as when she received it on April 26, 2011. Defendant objected on the bases of lack of foundation, the best-evidence rule, and hearsay. The court ruled, “at this time, it is admitted. It's admissible. I think what you are saying goes more to the weight, so it's admitted over objection.”

¶ 6 Exhibit No. 1 reflects that it is “From: dan daman.” The “sent” line reflects “Sent: Tuesday, April 26, 2011 1:37 a.m.” The subject line reflects “Subject: Hey Jodee, this is Dan Diomedes from Geneva.” The email is sent to “jodee@jodeeblanco.com” and copies “ thetetrisking@yahoo.com.” The e-mail states:

“Hi Jodee,

It's been awhile, I can't believe it's been this long, but I can't take it anymore, I wanna die. There was something I never told you in the last e [-]mail I sent you. I was expelled from Geneva High School for posting a threat on my Facebook. Some girl that use [sic ] to be my friend called the cops on me. I wasn't gonna do anything, I just wanted someone to care. The cops took my computer, and I've been in the alternative school since April of last year. I've made friends with the other kids who are bullied there, nobody messes with me because I'm not afraid of anything. A lot of progress between kids has increased, and my teachers say they view me as a leader. But, I can't do it, my family is useless low life shit, my teachers don't help me, they just tell me how to live with it. I'm talking about being in this alternative school. I was raised by low life people, then I AM THE ONE WHO HAS TO END UP IN A SPECIAL SCHOOL? NOT ONLY THAT, THE DEAN AT GENEVA NEVER DID ANYTHING WHEN I TOLD HER HOW KIDS TRIED TO HIT ME WITH THEIR CARS, THEY THREW SHIT AT ME, AND SHOT ME WITH AIRSOFT GUNS, WHICH LEFT MARKS ON MY FACE. I'm so well[-]behaved at this alternative school, that they tried to get me out, which RARELY happens, so it was a big deal, Geneva said they didn't want me back. I can't take this alternative school environment, I can't stand having to empty my pockets every morning, I can't stand being escorted every time I have to go to the bathroom or something like that. They have time[-]out rooms, mostly everyone at the school has been [in] them. I've been there a year, and never once have I had to go in one. I want out or I will die, the place is suffocating me. I NEED a regular school environment. I was in the counselor's office the other day because I was writing suicide notes, a will, and who I was going to kill. I planned not to hurt any kids, I just want the dean at Geneva, my grandparents, and my mother dead. I'm the one who has suffered my whole life, now I want them to suffer.” (Emphases in original.)

¶ 7 Blanco testified that, when she read the e-mail, she felt “[c]oncern for the safety of [defendant's] grandparents, his mother and the dean; compassionate, compassionate concern for [defendant] because the demeanor of the e-mail led [her] to believe that he was troubled and needed support.” After reading the e-mail, Blanco instructed her staff to telephone the principal at Geneva High School and to link Blanco into the conversation. She spoke to the principal “in the hopes that he would have the address of [defendant's] family so they could be alerted to get out of the house.” Next, Blanco was linked into a phone call with the police, and she asked them to dispatch units to defendant's residence and to Mades–Johnstone Center in St. Charles, the alternative high school where defendant was a student. Finally, Blanco contacted Mades–Johnstone.

¶ 8 Blanco testified that, although she is not a trained psychologist, she follows guidelines to protect herself from potential liability. Accordingly, when the principal of Mades–Johnstone had defendant and the police in his office, Blanco told the police that she was concerned about defendant and she asked that he be taken to a hospital where he could be observed and kept from hurting himself or others. She also spoke with the principal and with defendant, who was “sad, frightened, resolved.” According to Blanco, in that conversation, defendant threatened his mother and grandparents. She asked defendant if he understood that many lives, including his own, would change if he killed his mother and grandparents and if he “underst[ood] the finality of what that would mean.” Defendant responded, “yes.”

¶ 9 The State next called Ginger Rohde, one of defendant's teachers at Mades–Johnstone. Rohde testified that, on or about April 26, 2011, defendant was working at a computer station. Rohde approached defendant to tell him that “somebody had come for him,” and she saw at his station a folder that he used in the classroom. She took the folder and gave it to the police on April 26, 2011. The folder was introduced as exhibit No. 2. Rohde identified it and briefly described it as containing “some writings that were made that talked about a will, things that would be given away. It talked about kids suffering. It talked about [defendant] not belonging at our school, feeling that he didn't belong as one of our students. Talking about getting out.” Over defendant's relevance objection, the exhibit was admitted into evidence.³

¶ 10 Finally, Detective Brad Jerdee testified that he is the high school liaison officer responsible for monitoring criminal activities in the area high schools. On April 26, 2011, Jerdee learned of an e-mail that had been forwarded to Geneva High School by Blanco. When asked if he knew who sent the e-mail to Blanco, Jerdee replied that it was defendant. Defendant objected, arguing that there was no proof who wrote the e-mail; the court overruled defendant's objection. Jerdee continued that there were, at that time, three deans at Geneva High School: Mike Kelly, Reed Allison, and Susan Shrader. Jerdee identified exhibit No. 1 as the e-mail that defendant wrote to Blanco and that was forwarded to Jerdee's attention. (Defen...