specially concurring:
I concur with the majority opinion although I am reasonably certain we will see this case again.
A matter of significant interest is that the defendant was hospitalized for his mental problem from March 6 to March 17, 2005, and received medication for his ailment. He was discharged on March 17, 2005, and returned to the hospital the following day and was unsuccessful in securing his needed medication. It was on the following day he made the telephone call which is the basis of his conviction.
The record shows how strange this defendant was when he spoke of blowing up City Hall with “natural gas” because he can get the gas “right off Lake Michigan. Lake 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 gas in [his] bodily functions as far as a fart to blow all the criminal justices out of the City Hall.”
Clearly, defendant’s mental status should be of great concern to defense counsel, and counsel has two options where the issue of mental capacity can be seriously advanced.
First, defendant may assert an insanity defense at trial. Secondly, defendant can present evidence at the fitness hearing as to his competence to stand trial. In the case at bar, defense counsel did neither.
It would seem that a person hospitalized for mental problems, placed on serious medication and denied that medication might have an insanity defense that might be raised. People v. Murphy, 160 Ill. 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 evidence of defendant’s organic brain damage. While affirming the conviction, the Illinois Supreme Court vacated the death sentence pursuant to Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), on the theory that failure to advance such a defense fell below a standard of reasonableness.
Clearly a defendant must satisfy both prongs of a Strickland test before he can prevail on a claim of ineffective assistance of counsel. Certainly there are serious implications in the record that defendant could have proceeded with an insanity defense.
The record, however, is not sufficient for us to make that determination but one would assume that a postconviction proceeding will be filed hereafter which would allow the trial court to determine whether the proceedings were unreliable in the adversarial process by failure of defendant to assert an insanity defense.
In such postconviction proceedings, 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 second issue relates to defendant’s fitness to stand trial.
The record discloses that defendant asked for a behavioral clinical evaluation. Thereafter the trial court received a letter from Forensic Clinical Services which stated “defendant is fit to stand trial with medication.” After receiving the letter from Forensic Clinical Services, defendant’s counsel took no action to challenge the ruling as to defendant’s fitness 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. In the case at bar defense counsel did not challenge the behavioral clinic’s evaluation. In Lucas, the court found defendant fit to stand trial; however, only after a serious hearing with respect to that issue and a determination as to which party has the burden of proof.
Again, the appeal does not raise this issue directly and perhaps a serious Strickland issue will be raised at the postconviction level.
Sadly, people with mental illness often descend into darkness and issues of insanity or fitness for trial are most difficult for counsel to analyze.
However, what little is in the record gives us pause in this regard and it is for this reason that I attempt to establish the next phase of these proceedings.
CUNNINGHAM, J., joins in this special concurrence.