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People v. Smith

Court of Appeals of Illinois, Fourth District

July 24, 2019

ADAM C. SMITH, Defendant-Appellant.

          Appeal from the Circuit Court of Macon County Nos. 15-CF-1335 16-CC-116-CC-2 Honorable Karle E. Koritz, Judge Presiding.

          Attorneys for Appellant: James E. Chadd, Jacqueline L. Bullard, and Sonthonax B. SaintGermain, of State Appellate Defender's Office, of Springfield, for appellant.

          Attorneys for Appellee: Jay Scott, State's Attorney, of Decatur (Patrick Delfino, David J. Robinson, and John M. Zimmerman, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          JUSTICE DeARMOND delivered the judgment of the court, with opinion. Justice Harris concurred in the judgment and opinion. Justice Turner dissented, with opinion.



         ¶ 1 Due to a voicemail left on Judge Robert C. Bollinger's answering machine, the State charged defendant, Adam C. Smith, with threatening a public official. During the pendency of that case (case No. 15-CF-1355), the trial court found defendant in direct criminal contempt (case No. 16-CC-1). On May 13, 2016, after the jury found defendant guilty of threatening a public official in case No. 15-CF-1355, the court sentenced defendant to 30 days in the county jail for direct criminal contempt in case No. 16-CC-1. At the sentencing hearing in July 2016, the court again found defendant in direct criminal contempt for actions he had taken since the last contempt ruling and sentenced him to 180 days in jail as a sanction in case No. 16-CC-2. The court sentenced defendant to 10 years in prison for threatening a public official. Defendant filed appeals in all three cases. These appeals were consolidated in March 2018 for purposes of our review.

         ¶ 2 On appeal, defendant raises the following issues: (1) the State failed to prove beyond a reasonable doubt defendant intended to communicate a threat of unlawful violence to a public official; (2) section 12-9(a) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/12-9(a) (West 2014)) is unconstitutionally overbroad, violating the first amendment of the United States Constitution (U.S. Const., amend. I) and section 2 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, § 2); (3) the trial court erred by allowing the State to introduce other-crimes evidence, which denied him a fair trial; (4) he was denied his statutory right to a speedy trial when the court granted the State's motion to continue the case past March 31, 2016; (5) the court erred by allowing him to proceed pro se at trial without first substantially complying with Illinois Supreme Court Rule 401(a) (eff. July 1, 1984); (6) the court erred by not ordering, sua sponte, a hearing on his fitness, even though he had earlier been found fit to stand trial; (7) the court abused its discretion in summarily convicting him of direct criminal contempt in case Nos. 16-CC-1 and 16-CC-2; and (8) the court imposed an excessive sentence. We affirm in part and reverse in part.

         ¶ 3 I. BACKGROUND

         ¶ 4 In November 2015, the State charged defendant by information with threatening a public official (720 ILCS 5/12-9(a)(1), (a)(2) (West 2014)). According to the charging instrument, on or about October 27, 2015, "defendant knowingly conveyed to a public official, Judge Robert Bollinger, by telephone a communication containing a threat that placed the public official in reasonable apprehension of future bodily harm." On November 4, 2015, the trial court (Judge Dan Flannell) gave defendant a copy of the information and read the charges to him. The court asked defendant whether he had counsel, wanted to obtain private counsel, or wanted the court to appoint him a public defender. Defendant said he would represent himself because he believed the Macon County Public Defender's office was biased against him.

         ¶ 5 On November 25, 2015, at defendant's preliminary hearing, the trial court asked defendant if he still intended to represent himself or wanted a public defender appointed. Defendant again said he wanted to proceed pro se instead of being represented by the Macon County Public Defender's office. After finding the State established probable cause, the court again told defendant it would appoint a public defender to represent him but defendant did not have the right to choose who the public defender would be. Defendant said he would still proceed pro se.

         ¶ 6 On December 3, 2015, the case was assigned to Judge Karle Koritz, who normally sits in De Witt County.

         ¶ 7 On January 6, 2016, the State filed a motion for defendant to undergo a fitness evaluation. Defendant objected, arguing he had been found fit in a prior case and was fit. Over defendant's objection, the trial court appointed Dr. Rohi Patil to examine defendant and determine defendant's fitness to stand trial. On February 8, 2016, Dr. Patil submitted a report he prepared to the court, concluding defendant was fit to stand trial. The report stated:

"[Defendant] is a young man with a long history of mental illness and noncompliance with treatment. He has been found unfit to stand trial in criminal matters on two occasions in the past. At this time, he demonstrates significant grandiosity as well as persecutory beliefs, but although we find his judgment to be impaired, we do not believe that he is psychotic. He clearly understands the charge against him, the possible consequences if he is convicted, and courtroom processes and the roles of the major participants. We believe that he is fit to stand trial, although we fully expect him to try to impede the process through behavioral disruptions, bizarre motions, and other methods, and to feel fully justified in doing so."

         ¶ 8 On February 10, 2016, the trial court (Judge Koritz) found defendant fit to stand trial. Again, the court asked defendant whether he wanted to proceed pro se. The court stated it knew Judge Flannell had already admonished defendant regarding his right to counsel and found defendant made a knowing and intelligent waiver. However, the court stated it wanted to revisit the issue with defendant. The court explained the difficulties involved when a lay person defends himself in court. Defendant argued he was entitled to the appointment of private counsel rather than a public defender. The court told defendant it would appoint the Macon County Public Defender's office if defendant requested counsel. Defendant stated he would continue to represent himself.

         ¶ 9 The State also filed a motion to admit other-crimes evidence. The motion noted defendant had been in custody at the Macon County jail since October 28, 2015, which was the day after the alleged offense in case No. 15-CF-1355. According to the motion, on December 29, 2015, and January 7, 2016, while in jail, defendant tendered inmate-request slips to staff at the jail addressed to Judge Bollinger, both of which included statements to Judge Bollinger substantially similar to the voicemail left on Judge Bollinger's answering machine on October 27, 2015, which was the basis for the charge in case No. 15-CF-1355. The slip from December 29, 2015, referenced three Bible verses. The slip from January 7, 2016, also referenced multiple Bible verses. The State argued the request slips and the contents therein were relevant "other crimes" evidence admissible to show defendant's intent and identity. The State also asked for the trial to be continued from March 31, 2016, until the May trial setting because one of the State's material witnesses, Detective Matt Whetstone, would be unavailable on March 31.

         ¶ 10 On March 11, 2016, the trial court held a pretrial hearing and heard arguments on various motions. During the hearing, the court noted defendant had referred to the assistant state's attorney as a "snake attorney" and included citations to certain Bible verses, including Psalm 141:6, which, according to the court, references judges being thrown from a cliff. The court ordered defendant to refrain from (1) any references to Bible verses, unless the verses somehow related substantively to the motion; (2) insulting or derogatory language; and/or (3) name-calling in any motion going forward. The court warned defendant he would be subject to criminal contempt proceedings if he violated this order.

         ¶ 11 The trial court then addressed the State's motion to admit other-crimes evidence. The State noted Sergeant Kris Thompson would testify he received an inmate-request slip addressed to Judge Bollinger that contained derogatory and threatening language. Thompson received the slip from Correctional Officer Joshua Wilson, who picked the slip up from defendant's cell on December 29, 2015. Sergeant Thompson himself picked up another inmate-request slip from defendant addressed to Judge Bollinger containing multiple Bible verses and derogatory and threatening language. Detective Whetstone would testify that he was the original investigating officer in the case and was familiar with the original voicemail left for Judge Bollinger and that the tone and content of the inmate-request slips were similar to the voicemail left for Judge Bollinger. The State asked the court to admit the inmate-request slips to show defendant's identity as the individual who left the voicemail and his intent to physically threaten Judge Bollinger when he left the voicemail message. Defendant argued this evidence should not be admitted because the notes were written after the charged offense. The court granted the State's motion to admit the inmate-request slips as other-crimes evidence if the evidence was otherwise admissible and a proper foundation established. The court then denied the State's motion to continue defendant's trial off the March 31 calendar because the court thought the continuance could potentially affect defendant's right to a speedy trial.

         ¶ 12 The trial court also warned defendant about his behavior. The court noted allegations regarding defendant's erratic behavior might cause the court to question defendant's ability to represent himself and his fitness to stand trial. The court noted it did not have a bona fide doubt of defendant's fitness at that point but told defendant not to give the court a reason to have a bona fide doubt. The court also warned defendant his actions could cause him to be held in criminal contempt.

         ¶ 13 On May 10, 2016, the State filed a motion for a finding of direct criminal contempt. The court noted defendant had violated the court's order to not include derogatory and insulting language in documents he filed with the court. The State noted defendant referred to the case both as "fraudulent case No. 15-CF-1355" and "Adam C. Smith vs. Public Enemy # 1."

         ¶ 14 At a pretrial hearing on May 11, 2016, the trial court instructed defendant to keep his voice down, to stay calm, and not use terms like "BS" or "freaking." The court again told defendant he could be appointed a public defender to represent him. Defendant declined because the court was going to appoint a Macon County public defender. Defendant then told the court (Judge Koritz) defendant had made many complaints about him to the Judicial Inquiry Board. Defendant stated: "You, you keep that in mind with while Bollinger is being investigated, for hopefully the Judicial Inquiry Board is gonna hang-you're gonna be investigated right up above with them. So keep that in mind." The court immediately addressed defendant's comment, stating the court had ordered defendant to not use language that demeans the dignity of the trial court. The court found defendant to be in direct criminal contempt of court for violating the court's order. Defendant responded he held the court "in contempt with the Judicial Inquiry Board."

         ¶ 15 The trial court then advised defendant of the basis for the court's contempt ruling. The court noted defendant raised his voice to the court and told the court it should keep in mind defendant had reported the judge to the Judicial Inquiry Board. The court also noted the various filings defendant had made since March 31 accusing the court of judicial corruption and extortion and defendant's continued references to Macon County as "Make-Up County" and his case as a "fraudulent court case." The court did not sentence defendant at that time.

         ¶ 16 Defendant's trial was held in May 2016. Defendant proceeded pro se. Although he was on trial for threatening a public official, his opening statement focused mainly on alleged wrongs committed by Judge Bollinger and law enforcement officers. Defendant told the jury he filed petitions in the circuit court regarding offenses police officers committed against him, including burglarizing his home while he was in jail on a prior charge. The Decatur Police Department refused to make an arrest. When law enforcement failed to act, he filed petitions at the circuit clerk's office. Defendant told the jurors Judge Bollinger filed a false police report against him and dismissed his mandamus petitions as part of a cover-up. He also told the jurors he had been denied his right to use the public law library in the Macon County courthouse and either Judge Bollinger, a detective, or someone in the state's attorney's office had illegally tampered with evidence. He ended his opening statement by telling the jurors the evidence in the case would prove Judge Bollinger's guilt and defendant's innocence.

         ¶ 17 Amanda Dillow testified she was Judge Bollinger's judicial clerk. Her job duties included answering the phone, taking messages, scheduling court hearings, making sure cases were prepared for court, and making entries on the computer during court. If anyone from the public wanted to contact Judge Bollinger, they could call a phone number for a telephone line she answered. If she did not answer the call, a caller was given the option of leaving a voicemail message. On October 27, 2015, someone left a message that concerned her "because it was sort of a rambling-type of message, undertones of-I don't really want to say threatening, but it was kind of just unsettling." She told Judge Bollinger that someone, whom she believed was defendant, had left the judge an angry message. The judge did not listen to the message before court security was informed of it. Sergeant Lydell Kallenback and then Detective Whetstone came to the office and listened to the message. The judge listened to the message later in the day.

         ¶ 18 On cross-examination, defendant asked Dillow if she heard anything that was "actually threatening." She responded it was an implied threat. According to her testimony, "It was not a direct this-is-going-to-happen type of thing. It was more a watch-your-back type of thing." Defendant then asked her what words in the voicemail formed the basis for her belief the message contained an implied threat. She responded she could not say she remembered the message verbatim. However, the caller said something to the effect this would not be the last time Judge Bollinger heard from the caller. She described the message as an indirect threat. She did not know if the caller meant he was going to (1) report Judge Bollinger to the Judicial Inquiry Board or (2) physically harm the judge. However, she said the caller was very angry with Judge Bollinger.

         ¶ 19 On redirect examination, Dillow testified this was not a typical message normally left for Judge Bollinger. The message did not contain a specific, overt threat, but the message had a "blanket undertone." The caller was very angry, specifically with Judge Bollinger.

         ¶ 20 Judge Robert Bollinger testified he was a circuit court judge in Macon County. He handled a variety of cases, including miscellaneous remedy or "MR" cases. On October 26, 2015, he reviewed five petitions for leave to file mandamus actions filed by defendant. The five petitions asked for mandamus relief based on alleged misconduct by Macon County law enforcement and correctional officers, the Decatur Police Department, the state's attorney, and the "Residing" judge and other officials at the Macon County courthouse.

         ¶ 21 The certified records for these "MR" cases were admitted into evidence. In case No. 15-MR-997, defendant alleged someone working for the Macon County Sheriffs Office took the key to his home from the property room and then burglarized and vandalized his house. Defendant asked the trial court to issue an order compelling the unnamed individual working in the sheriffs department to be arrested and criminally charged. He also accused the Decatur Police Department of covering up the crime.

         ¶ 22 In case No. 15-MR-998, defendant asked to be allowed to use the Macon County law library. The named defendants in this case were the Macon County Sheriffs Office and the Macon County courthouse. According to his petition, the sheriffs department and courthouse personnel were violating his equal protection rights by denying him access to the law library.

         ¶ 23 In case No. 15-MR-999, defendant accused the state's attorney of filing fraudulent charges against him, which led to his wrongful imprisonment for 3½ years. He asked the state's attorney to provide him a "certificate of innocents [sic]" in case No. 11-CF-1712.

         ¶ 24 In case No. 15-MR-1000, defendant alleged Correctional Officer Samuel Hubner and/or Sergeant Flannery admitted fabricating and then destroying false forensic evidence. He wanted the named defendants fired from their jobs, arrested, and charged with criminal offenses.

         ¶ 25 Finally, in case No. 15-MR-1001, defendant alleged Officer Cory Maloney and Correctional Officer Mounce violated section 103-8 of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-8 (West 2014)) by eavesdropping on his communications with his attorney. He also alleged Officer Maloney tried to convince him to plead guilty in an earlier case. He asked for an order of mandamus compelling the two individuals to be fired, arrested, and criminally charged.

         ¶ 26 On October 26, 2015, Judge Bollinger denied defendant's petitions for leave to file his mandamus petitions, found the five claims amounted to an abuse of the court process, dismissed the mandamus petitions, and denied defendant leave to amend his pleadings.

         ¶ 27 The next day, Dillow informed Judge Bollinger of the voicemail message. She was somewhat alarmed by the message. Bollinger did not immediately listen to the message but asked someone from the Macon County Sheriffs Office to listen. Sergeant Kallenback came to his office and listened to the message. Bollinger listened to the message at that time. The message concerned him. He had never received a phone call similar to that message. He stated, "I was concerned because of certain language used in that-on that-message about what this caller's intentions were directed toward me." When asked whether anything about the call was specifically threatening, Bollinger stated he was particularly concerned the caller felt like he had tried to handle something legally but Judge Bollinger stopped him. The caller said Judge Bollinger would be hearing from someone if he did not reconsider what he had done. He testified the message placed him in fear of future bodily harm.

         ¶ 28 Detective Matt Whetstone of the Macon County Sheriffs Office testified he reported to Judge Bollinger's chambers on October 27, 2015, because of a possible threat to the judge. He listened to the message left for the judge and recorded it on a portable voice recorder. The recorded message was played for the jury. The message stated:

"Yeah I was uh, wanting to speak with uh, Bollinger, but obviously that cock-sucker doesn't want to speak to the public, that corrupt son of a bitch, so uh. Well he's, uh, committed perjury and stuff and I've got all the facts on that, so uh, well that's, that's, that's on him, that, that's on him if that's the corruption that he wants to illegally play. So uh, uh, I'm sure he'll be hearing more from someone so alright… I was just trying to give him, you know, another chance to, uh, you know, reconsider, while he's, he's got a chance to so, I was uh, yeah, you know, trying to do something correct, trying to go about things legally to get some things taken care of, for which he was obviously trying to cover up, so I'll take it from there … so alrighty, thank you … bye-bye."

         Detective Whetstone testified the voice in the recording belonged to defendant.

         ¶ 29 On October 28, 2015, Whetstone spoke with defendant. The telephone number defendant provided Whetstone was the number the caller to Judge Bollinger used to leave the message at issue.

         ¶ 30 The trial court allowed the State to present evidence regarding the inmate-request slips defendant left for Judge Bollinger at the jail. The court instructed the jury this evidence would "be received on the issues of the Defendant's identification and intent and may be considered by you only for that limited purpose." The court told the jury, "It is for you to determine whether the Defendant was involved in that conduct and, if so, what weight should be given to this evidence on the issues of the Defendant's identification and intent only."

         ¶ 31 Correctional Officer Joshua Wilson with the Macon County Sheriffs Office testified he picked up an inmate-request slip from defendant's cell on December 29, 2015. No one but defendant was in the cell at that time. Wilson could not do anything with the request so he passed it on to Sergeant Kris Thompson. Wilson said the request slip was not requesting anything and did not include any threats as far as he could tell.

         ¶ 32 Sergeant Kris Thompson of the Macon County Sheriffs Office testified he was assigned to the county jail. His duties at the jail included reviewing hundreds of inmate request slips and facilitating things the inmates needed. He also supervised corrections officers working in the jail. Officer Wilson provided him with an inmate-request slip on December 29, 2015. The request form had been filled out by defendant. The inmate addressed the request slip to Judge Bollinger. The request slip cited Psalms 55:15 and 141:6 and Isaiah 40:23. Defendant also wrote on the form, "I'm going to prove you guilty of your fraudulent charge and corruption against me, and do my best to get you prosecuted. This is a fact, not a threat, you anti-American communistic piece of shit." Defendant then drew a middle finger and wrote "F U!"

         ¶ 33 Defendant had access to a Bible when he wrote this slip. The State introduced a Bible taken from defendant's cell. In the Bible taken from defendant's cell, Psalm 55:15 states: "Let death seize them. Let them go down alive into hell for wickedness. It is in their dwellings and among them." Psalm 141:6 states: "Their judges are overthrown by the sides of the cliff, and they hear my words, for they are sweet." Isaiah 40:23 reads: "He brings the princes to nothing. He makes the judges of the earth useless."

         ¶ 34 Sergeant Thompson testified he received another inmate-request slip from defendant on January 7, 2016, which again was addressed to Judge Bollinger. This slip cited Deuteronomy 32:30, 31, 34, and 42; Psalm 55:15, 28:23, and 144:6; Isaiah 33:22 and 40:23; and Amos 2:3. The slip then states:

"Praise the Lord.
As my right to freedom of speech and my j ob to preach the word of the Lord as his servant, I'm sharing the word of the Lord with Judge Bollinger, due to his fraudulent charge against me, and because he defies the Lord of hosts, and due to his corruption he is being investigated for the purpose of prosecution and conviction. I'm doing my best to help in the investigation. Praise the Lord."

         Defendant then cited Psalm 144:9 and signed his name to the slip. Defendant then wrote:

"All this writing is a fact, not a threat. You cocksucking piece of shit, so don't take it any other way unless it's up your ass, you fag. Hey Bollinger, if you like balls, I'd like to ball you up as a bowling ball and strike out the rest of make-up counties' judges and state's attorneys, then I'll make your ass a gutter ball. Talking about your mind being in the gutter, have you been to Play-Mor Lanes yet? I'm going[.] I'm going to striking [sic] out the entire corruption ring, I'm playing major league baseball man."

         Thompson testified Deuteronomy 32:30 states, "How could one chase a thousand, and two put ten thousand to flight, unless their rock had sold them, and the Lord surrendered them. For the rock is not like our rock, even our enemies themselves being judges." Deuteronomy 32:41-42 states:

"If I whet my glittering sword and my hand takes hold on judgment; I will render vengeance to my enemies and repay those who hate me. I will make my arrows drunk with blood, and my sword shall devour flesh; with the blood of the slain and the captives from the heads of the leaders of the enemy."

         Psalm 68:23 states: "That your foot may crush them in blood, and the tongues of your dogs may have their portion from your enemies." Isaiah 33:22 states: "For the Lord is our judge, the Lord is our lawgiver. The Lord is our king, he will save us." Amos 2:3 states: "And I will cut off the judges from ...

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