THIRD DI VISI ON August 20, 2008

No. 1-06-1628

THE PEOPL

E OF THE

STATE OF

IL LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) No. 05 CR 8133 ) ROOSEVELT BI

LL UPS, JR., ) Honorab le ) James D. Egan, Defend ant-App ellant. ) Judge Presi ding.

JUSTICE THEI S deliver

ed the opinion of the

court: Followin g a bench trial, defenda nt Rooseve

lt Billups w as found g

uilty of disord erly conduct and sentenced to two y ears’ imprisonment. On appeal, defendant cha llenges the sufficie ncy of the evidence t

o sustain h

is convic tion. He sp ecifica lly c ontends th at the Sta

te fa il ed to es ta bl is h t he co nc ea lm en t e le me nt of th e d is or de rl y co nd uc t c ha rg e a nd , a cc or di ng ly, that his conviction should be reversed. At trial, the parties stipulated that Cynthia McCall would testify that about 11:45 a.m., on March 18 , 2005, she

was an op erator

at the Chic ago 911 center and rec eived a p

hone ca ll from a cell phone identified as “312-730-7369.” McCall would further testify that she listened to a tape recording of that call and verifie d that it was an accurate recording of the conversation. That tape record ing wasplayed in cour

t, and the releva nt portion s of it are

as follow s: “DI SPATCHER: Y ou gonna blow up wh at? DEFENDANT: City H all ***. * * *1-06-1628

- 2 - DISPATCHER: Do y ou have a bomb there? At Mt. Sinai? How you gonna blow it up? DEFENDANT: Natural gas. * * * DISPA TCHER: Wher

e y ou gonna

put the na

tural g as at? DEFENDANT: Right where I said. Right off Lake Michig an. Lake Michiga n is full of

natural gas. DISPA TCHER: You

gonna b low up City

Hall with n atural g as? DEFENDANT: Yep. * * * DEFENDANT: I’ m going to blow up City Ha ll.” The parties also stipulated that, if bomb and arson explosive technician Gavin were called, he would testify

that on March 18, 2005, he was assigned to the bomb and ar son unit of the Chicago police department and called upon to investig ate the 911 call in question. During the cour se of his in

vestiga tion, he di aled “31 2-730-73 69” and c onverse d with “B ishop Roose velt, Jr. Billups,” who stated that he lived at 2440 West Flournoy Stree t. Gavin would also testify that Billups told him that he was on a bus to Cuba at the time of their conversation. Detecti ve Anthon

y K ubisnv tes tified tha

t he was a ssigned

to the Chic ago pol

ice bomb and arso n unit, and

on the nig

ht of Mar ch 18, 200 5, he beg an worki ng with D etective Schall investigating a bomb threat to City Hall. Detective Kubisnv testified that he was searching for “Roosevelt Billups” who lived at 2440 West Flournoy Street. He and Detective Schall arrived at that location in the early mor ning hours of March 19, 2005, and spoke with defenda nt, who agreed to accompany

them to the bomb and arson office. There, defe ndant told Detective Kubisnv th at he ca

lled the 9 11 cente

r stating that the p residen t, may or, and Janet Reno we re all1-06-1628

- 3 -

going to die and that God was going to kill them. Defendant also indicated that he told the 911 operator that he was going to blow up City Hall. Detective Kubisnv testified that he knew that City Hall was chec

ked for explosives, but none were found. Defendant testified on his own behalf that from March 6 throug h March 17, 2005, he was at Mount Sinai Hospital receiving medication. He was discharg ed on March 17, 2005, without medication, and returned to the hospital the following day in an unsuccessful attempt to obtain it. Defend ant admitt

ed that he made the 911 call, but stated

that he ha

d no plans t

o blow up Cit

y Hall. He explained

that he “ was going to use the natur al gas in [his] bodily

function s as far

as a fart to blow all the criminal justices out of the City Ha ll.” The par ties then s tipulated

to defendant’s pr

ior felon y c onviction

for thre atening

a public officia l. Follow ing evid

ence and argument, the

trial cou rt found t hat ther e were no reaso nable grounds to believe a bomb or explosive was concealed in the de signated place. The trial court then stated the 911 call was a false alarm and that the State ha d proved defendant guilty of disorder ly c onduct be

yond a reas onable do

ubt. On appeal, defendant challeng es the sufficiency of the evidence to sustain his conviction. He spec ifically

maintainsthat a re

view of th

e 911 tape

establish es that he never th reatened to blow up City

Hall with n atural g as that wa s concea led in City

Hall, but instead th

reatened to blow it up at some unknown time with natural gas that was stored in L ake Michigan. Defendant therefore posits that the State failed to establish the concealment ele ment of the offense of disorderly conduct and this court should reverse his conviction. Where, a s here, d

efenda nt challe nges the sufficie ncy of the evidence t

o sustain h

is conviction, the question for the reviewing court is whether , after viewing the evidence in the lig ht most favorable to the State, any rational trier of fact could have found the e ssential elements of the crime bey ond a reasonable doubt. People v. Brooks , 187 I ll. 2d 91, 13 2 (1999). This1-06-1628

- 4 -

stand ard rec ogniz es the respo nsib ilit y of the tr ier of fact t o asse ss wi tness credib ilit y, to weigh the evidence and draw reasona ble inferences therefrom, and to re solve any conf licts in the testimony. People v. Campbell , 146 Ill. 2d 363, 375 (1992). A reviewing court will not set aside a crimina l convict ion unlessthe evide

nce is so i mprobabl e or unsa tisfacto ry that it cr eates a reasonable doubt of defendant’s g uilt. People v. Cox , 195 Ill. 2d 378, 387 (2001). To sustain defendant's conviction for disorderly conduct under section 26-1(a)(3) of the Criminal Co de of 196 1 (Code) (720 I LCS 5/2 6-1(a) (3) (West

2004)), t he evide nce must e stablish that he transmitted or caused to transmit to another a false alar m to the effect that a bomb or other expl osive wa s concea led in such place, that its expl osion woul d endang er human life, whi le also knowing at the time of the transmission that there was no reasona ble ground for believing that a bomb or explosive was concealed in such place. Viewed in the light most favorable to the prosecution, the evidenc e showed that defenda nt made a false a larm call to 911 whe

re he sta ted he wa s going

to “blow u

p” City Hall with natur

al gas. The stipul ated tes timony showed th at the 911 operato r identif ied the c all number a s “312-73 0-7369,”and that D etective Gavin ca lled that n umber and conver sed with defendant, who answered. There after, defendant admitted to Detective Kubisnv that he made a phone call to City Hall and threa tened to “blow up City Hall.” De tective Kubisnv further testified that a check for explosives was made at City Hall, but none were found. This evidence was sufficient to prove beyond a reasonable doubt that defendant transmitted a fa lse alarm that he was going to blow up City Hall with natural gas knowing at the time of the tra nsmission that none was concealed in the designa ted place, thereby

establishing his guilt of disorderly conduct. People v. McDole , 48 Ill. App. 3d 663, 665 (1977). Defendant contends, nevertheless, that the State fa iled to establish the concealment element of the offense. Defendant c ompares the case at bar to McDole , 48 Ill. App. 3d at 664,1-06-1628

- 5 -

where defendant was found g uilty of disorderly

conduct for calling a corpora tion and saying, “ ‘The b omb will g o off at 2 o'cloc k.’ ” Defendant

argue s that McDole

is an example of an imminent threat from which one could infer that a bomb was conce aled on the premises. Defend ant mainta

ins that thi s case is dissimilar from McDole

because, here, the State presented no evidence that he told the dispatcher that he had conc ealed natural gas in City Hall or that she believe d that def

endant ha d communic ated an imminent thr eat. Thu s, althoug

h his thre at was a false alarm, it did not constitute disorderly c onduct. We disagree. Although defend ant did not specify a time whe

n the explos ion was to t

ake plac e and his responses to the dispatcher were rambling , we find, similar to McDole , that the court could reasonably

find that defendant’s statements over the telephone wer e sufficient to imply, and the recipient did so infer, that an explosive was concealed on the desig nated premises. McDole , 48 Ill. App. 3d at 665; see also People v. Banuelos , 345 Ill. App. 3d 970, 973 (2004) (commenting that words used in convey ing a false alarm that raise the belief that a device is concealed are sufficient to show disorderly c onduct). The transcript shows that defendant made re peated references to the targ et as City Hall, and evidenc e was presented at trial that City Hall was checked for explosives in response to defendant’s ca ll. As such, we conclude that defendant’s words were sufficient to fall under the ambit of prohibited conduct under the disorderly conduct

statute. Ac co rd in gl y, w e a ff ir m t he ju dg me nt en te re d b y th e c ir cu it co ur t o f C oo k C ou nt y. Affirmed. CUNNI NGHAM, J., c oncurs. GREI MAN, J., spe cially

concurs .No. 1-06-1628

- 6 -

JUS TICE GRE IMAN, sp ecial ly concurr ing: I co ncur with

the major

ity o pinion although I

am reas onably

certain we will se e this ca se again. A matter of significant interest is that the defendant wa s hospitalized for his mental problem from March 6 to March 17, 2005, and rece ived medication for his ailment. He was discharged on March 17, 2005, and re turned to the hospital the following day and was unsuccessful in securing his needed medica tion. It was on the following day he made the telephone call which is the basis of his conviction. The rec ord showshow strange this d efenda nt was whe

n he spoke

of blowing

up City Hall with "natural gas" bec ause he can get the g as "right off Lake Michigan. L ake Michigan is full of natural gas." In his testimony

at trial, he suggests he will do all of this with a fart and that he was "going to use the natural g as in [his] bodily functions as far as a far t to blow all the criminal justices out of the City Hall." Clearly, defe

ndant's mental status should be of great conc ern to defense counsel, and counsel has two options where the issue of mental capacity can be seriously

advanced. First, defendant may

assert an insanity de

fense at trial. Secondly , defendant can present evidenc e at the f

itness he aring a s to his comp etence to stand tr

ial. I n the cas e at bar , defens e counsel did neither. It would seem that a person hospitalized for mental proble ms, placed on serious medication and denied that medication might have an insanity defense that might be raised. People v. Murphy , 160 I

ll. App. 3d

781 (1987 ); People v. Morgan , 187 Ill. 2d 500 (1999). In Morgan , defense counsel failed at the capital sentencing phase to present mitigating evidenc e of def

endant' s organ

ic brain damage . While aff

irming th e convic tion, the I

llinois Supreme Court vacated the death sentence pursua nt to Strickland v. Washington , 466 U.S. 668,No. 1-06-1628

- 7 -

80 L. E d. 2d 674, 1 04 S. Ct. 2052 (1984), o n the theo

ry that fail ure to ad vance su ch a def

ense fell below a s tandard

of reas onablene ss. Clearly a de

fendant must satisfy both prong s of a Strickland test before he can prevail on a claim of ineffective assistance of counse l. Certainly there a

re serious implications in the record that defendant could have proceede d with an insanity defense

. The rec ord, howe

ver, is no t suffici ent for u s to make th at deter mination bu

t one woul d assume that a postconviction proceeding will be filed here after which would allow the trial court to determine whether the proceeding s were unreliable in the adversarial proc ess by failure of defendant to assert an insanity defense. In such postconviction proceeding s, the State will assert that his mental condition was known at the time of the appeal and failure to assert same is a waiver of this issue. Perhaps we have a double Strickland

. The sec ond issue r

elates to defenda nt's fitn ess to stand trial. The record discloses that defendant asked f or a behavioral clinical evaluation. Thereafter the trial cour t received a letter from Forensic Clinical Services which stated "defendant is fit to stand trial with medication." After receiving the letter from Forens ic Clinica

l Service s, defendant's c ounsel too k no action to chall enge th e ruling as to defenda nt's fitn ess to stand trial. In People v. Lucas , 140 Ill. App. 3d 1 (1986), a case which is similar to the case at bar, a written report by a

clinical physician stating that defendant was fit to stand trial was filed in court and a contested hearing followed. I n the case at bar defense counse l did not challenge the behavioral clinic's evaluation. I n Lucas , the court found defendant fit to stand trial; however, only after a

serious hearing with respect to that issue and a de termination as to which party ha s the burden of proof.No. 1-06-1628

- 8 -

Again, the appe al does not raise th is issue dir

ectly and perh aps a ser

ious Strickland issue will be ra ised at the

post-con viction le vel. Sadly, people with mental illness often desc end into darkness and issues of insanity or fitness for trial are most difficult for counsel to analy ze. However, what little is in the record gives us pause in this reg ard and it is for this reason that I attempt to

establish the next pha se of the se proceedings. CUNNINGHAM, J., joins in this special concurrence

.