In re Commitment of Fields , 981 N.E.2d 384 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Commitment of Fields, 2012 IL App (1st) 112191Appellate Court In re COMMITMENT OF JUSTIN FIELDS (The People of the State of
Caption Illinois, Petitioner-Appellee, v. Justin Fields, Respondent-Appellant).
District & No. First District, Third Division
Docket No. 1-11-2191
Filed November 14, 2012
Modified upon denial
of rehearing December 28, 2012
Held In proceedings seeking the commitment of respondent as a sexually
(Note: This syllabus violent person, the prosecutor’s remarks in closing argument allegedly
constitutes no part of arguing expert’s testimony as substantive evidence did not improperly
the opinion of the court shift the burden of proof, violate orders in limine or warrant a mistrial,
but has been prepared and although respondent was proved to be a sexually violent person, the
by the Reporter of commitment order was vacated and the cause was remanded for a proper
Decisions for the dispositional hearing, since the trial court erred in failing to allow
convenience of the respondent to present evidence at the dispositional stage.
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-80002; the
Review Hon. Michael B. McHale, Judge, presiding.
Judgment Affirmed in part and cacated in part; cause remanded.
Counsel on Law Offices of Chicago-Kent College of Law, of Chicago (Daniel T.
Appeal Coyne, Matthew M. Daniels, and Elizabeth D. Leeb, of counsel), for
appellant.
Lisa Madigan, Attorney General, of Chicago (Michael A. Scodro,
Solicitor General, and Michael M. Glick and Lindsay Beyer Payne,
Assistant Attorneys General, of counsel), for the People.
Panel JUSTICE STEELE delivered the judgment of the court, with opinion.
Justices Neville and Sterba concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial in the circuit court of Cook County, respondent Justin Fields was
found to be a sexually violent person (SVP) under the Sexually Violent Persons Commitment
Act (Act) (725 ILCS 207/1 et seq. (West 2010)).1 The trial court subsequently entered an
order committing respondent to a secure facility for institutional care and treatment. On
appeal, respondent argues that: (1) he was denied a fair trial when the prosecution improperly
commented about his custodial status and nonparticipation in treatment, as well as
improperly argued testimony from the State’s expert witnesses as substantive evidence,
during its closing argument that shifted the burden of proof and violated orders in limine; (2)
the trial court erred in denying his motion for mistrial based upon the prosecution’s allegedly
improper remarks during closing argument; (3) the State failed to prove beyond a reasonable
doubt that he was an SVP under the Act; and (4) he was denied his right to a dispositional
hearing under the Act (725 ILCS 207/40(b) (West 2010)) before the commitment order was
entered. While we reject respondent’s challenges to the prosecutor’s remarks during closing
argument and the sufficiency of the evidence against him, we remand the cause to the trial
court to conduct a dispositional hearing allowing respondent to present testimony and
evidence for its consideration in framing the commitment order.
¶2 BACKGROUND
¶3 On August 23, 2005, the respondent, then 21 years old, was arrested and charged with
with approximately 20 counts for various offenses, including aggravated criminal sexual
1
The Act, which was enacted in 1998, authorizes the involuntary commitment of individuals
beyond the time of release where the individuals are found to be sexually violent as defined by the
Act. In re Detention of Samuelson, 189 Ill. 2d 548, 551-52 (2000). Additionally, the Act provides
for periodic reexamination of such individuals to determine if they should be considered for
conditional release or discharge. 720 ILCS 207/55 (West 2010).
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abuse, aggravated kidnapping, and possession of a stolen motor vehicle, in Cook County
circuit court case number 05 CR 21674. He subsequently pled guilty to one count of
aggravated sexual abuse and one count of kidnapping stemming from the events involving
a nine-year-old male victim. He was sentenced to three years’ imprisonment in the Illinois
Department of Corrections (DOC).
¶4 Petition for Commitment
¶5 Prior to his mandatory supervised release, the State filed a petition on February 14, 2007,
for respondent’s involuntary commitment under the Act. The petition alleged, among other
things, that respondent was an SVP as defined by the Act; that respondent was diagnosed by
Barry Leavitt, Psy. D., as having the mental disorder of pedophilia; and that respondent’s
mental disorder made it substantially probable that he would engage in sexually violent acts.
Dr. Leavitt’s evaluation was attached to the petition.
¶6 On February 15, 2007, the trial court entered an order to have respondent detained in a
facility under the custody of the Illinois Department of Human Services (DHS). On July 25,
2007, the trial court entered a memorandum opinion and order finding probable cause for
respondent’s commitment under the Act following hearings that commenced on April 17,
2007, and concluded on June 18, 2007. Counsel for the parties filed jury demands on the
same date. Further, Lesley Kane, Psy. D., was appointed as the respondent’s expert to
conduct an assessment and evaluation of the respondent.
¶7 Pretrial Proceedings
¶8 Prior to trial, the parties engaged in discovery, including depositions and document
production, and respondent filed various motions. For the purposes of our discussion, this
section highlights motions in limine related to the issues raised on appeal. On August 30,
2010, respondent filed two motions in limine. One motion sought to limit testimony about
the respondent’s background proffered by the State’s witnesses only to show the bases for
their opinions and not as substantive evidence in accordance with Wilson v. Clark, 84 Ill. 2d
186 (1981). Respondent also requested an appropriate instruction for the jury. The second
motion sought to preclude any testimony regarding respondent’s custodial status, to which
the State objected.
¶9 On September 17, 2010, the trial court conducted a hearing on respondent’s motions. The
trial court granted the motion brought under Wilson, with no objection by the State. The trial
court agreed to provide a limiting instruction to the jury before each witness testified and
during closing instructions. The trial court also cautioned the State to preface comments
during closing arguments that the information was relied upon by the witnesses in forming
their opinions. As for the motion regarding respondent’s custodial status, the trial court
granted the motion in part, admonishing the State not to make “unnecessary or gratuitous”
references to respondent’s custodial status. In response to the State’s request for clarification,
the trial court indicated it was acceptable to ask routine questions, such as where an interview
with respondent occurred, and noted respondent’s custodial status would come up in
anticipated discussion regarding disciplinary tickets contained in respondent’s master file.
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Indeed, the trial court expected the term “did” would have to be used relative to respondent’s
conduct while in custody.
¶ 10 Trial Proceedings
¶ 11 After some continuances, the jury trial was scheduled to begin on March 22, 2011. On
March 22, 2011, the jury was selected. Before the trial proceedings began the following day,
respondent moved in limine for the trial court to instruct the jury before and after every
witness’s testimony, as well as prior to deliberations, about the limited purpose of their
testimony about respondent’s background under Wilson in explaining the bases for their
opinions and not as substantive evidence. The State objected to the limiting instruction being
read after each witness’s testimony. Referring to his notes when the issue was previously
raised, the trial judge denied the request and indicated he would issue the limited instruction
to the jury before each witness testified and with the closing instructions. The court then
proceeded with other preliminary matters, including admonishing the jury about respondent’s
innocence until proven guilty, the State having the burden to prove beyond a reasonable
doubt its allegations, and the opening statements by the parties were not evidence. The State
called Dr. Leavitt as its first witness. Before he testified, the trial judge cautioned the jury,
consistent with the order in limine, about the limited purpose of his testimony.
¶ 12 Leavitt Testimony
¶ 13 Dr. Leavitt testified that he was a licensed psychologist in Illinois and had been licensed
to practice for approximately 25 years. He had his own clinical and forensic practice that
involved general and psychological treatment of juveniles and adults individuals, and
specialized forensic assessments of sexually violent persons in Illinois and other jurisdictions
and of issues that may be relevant in court. He previously worked for about 25 years with
Affiliated Psychologists, a clinical and forensic practice located in Chicago, Illinois, that had
a contract with the DOC to conduct screenings. He described his educational background,
which included a doctoral degree and a master’s degree in clinical psychology. Over the last
25 years, he specialized in the general area of sexual abuse, with the last 15 or more years
focusing in the area of evaluation and risk assessments of juvenile and adults who had
committed assorted sexual offenses. He noted that the “far majority” of evaluations did not
result in SVP referrals. Since 1998, he had conducted nearly 200 evaluations of sex offenders
and SVPs. Moreover, he had conducted or overseen approximately several thousand
screenings for the DOC’s sexually violent persons unit while working at Affiliated
Psychologists. Along with membership in various professional organizations, he had been
approved by the Illinois Sex Offender Management Board regarding assessment and
treatment of adult and juvenile sex offenders. He had testified and been qualified as an expert
in clinical and forensic psychology, specifically regarding sex offender evaluations, diagnosis
and risk assessments, over 100 times in Illinois courts throughout the state. The State
tendered Dr. Leavitt as an expert witness. The trial court qualified him as an expert, with no
objection by the respondent.
¶ 14 Dr. Leavitt testified that he was familiar with the general purpose of the Act. He
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explained the DOC’s responsibility related to the Act to screen, evaluate, interview, and
identify persons who met the criteria, and report opinions about potentially eligible persons
to the Attorney General’s office for consideration. In 2007, Affiliated Psychologists had a
contract with the DOC to conduct screenings, evaluations, and interviews. He reiterated that
about 90% of the individuals screened did not meet the necessary criteria for commitment
under the Act (due to no diagnosis and/or no risk), and that less than 5% were referred to the
next phase after screening. He conducted a clinical evaluation of the respondent, who was
scheduled for release on February 19, 2007, to determine if he was a candidate for
commitment under the Act. Respondent agreed to the interview, which lasted approximately
3½ hours, and only the two of them were present. He stated that he followed the standard
protocol in evaluating respondent. Prior to his interview with respondent, he reviewed
records made available by the DOC, such as respondent’s master file, which consisted of
disciplinary reports, criminal history (with details about the offense for his current
imprisonment), medical and health evaluations, and other materials available in his
correction file, along with police reports and treatment evaluations. He testified that these
documents were the type reasonably relied upon by experts in the field when conducting
evaluations, and that he relied upon these documents in evaluating respondent. He prepared
a written evaluation on February 12, 2007. At some point after his report, he learned
respondent’s birth date on the report, which was based upon the records he reviewed, was
inaccurate as respondent was a year younger than the date on the records.
¶ 15 Dr. Leavitt testified that respondent’s criminal history was relevant in forming his
opinion. He testified about a 2005 offense involving aggravated criminal sexual abuse and
kidnapping, to which respondent pled guilty and for which he was sentenced to three years’
incarceration after being charged with over 20 counts. When respondent was 21 years old,
he asked a 9-year-old male whom he knew to get into a stolen car that respondent was
driving and offered to buy gym shoes for the minor. Respondent drove to a vacant or
abandoned apartment building where he fondled the minor’s genitals while the child was
lying on the floor. According to the record Dr. Leavitt reviewed, respondent refused to stop
at the victim’s request. When the victim began crying, respondent stopped, drove the victim
to a gas station, and told him to walk home. He also reviewed respondent’s signed
handwritten statement confessing to his actions and expressing experiencing sexual arousal
from the encounter. Respondent denied committing the offense when he met with Dr.
Leavitt.
¶ 16 He also considered an offense that occurred on May 24, 2000, when the respondent was
15 years and 8 months old and was riding a bicycle with a 9-year-old male on the back.
Respondent rode into an alley, turned around, and fondled the minor’s genitals through his
sweat pants. Although respondent was initially charged with criminal sexual assault, he
eventually pled guilty to simple battery, was adjudicated a delinquent, and sentenced to
probation. The victim’s mother requested that respondent be charged with a lesser offense
if he received counseling. Dr. Leavitt testified that respondent also denied committing this
offense during their meeting. Although the respondent’s conviction was for simple battery,
he considered the offense and stressed that viewing the details of a given case was important
because many offenses contained a sexual component that was helpful in understanding
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potential mental disorders and potential risks.
¶ 17 Dr. Leavitt testified that the details surrounding these offenses were important for two
primary reasons: both offenses involved nine-year-old males and the second incident
reflected an escalation in respondent’s behavior from the first offense.
¶ 18 Dr. Leavitt further testified he considered respondent’s nonsexual juvenile and criminal
history in forming his opinions. He testified about respondent accruing curfew violations and
school truancy beginning at age 10; being expelled from his home at age 12; being adjudged
delinquent and charged with aggravated arson at age 14; selling drugs between ages 15 and
17; and being in and out of various juvenile detention facilities from ages 13 to 18.
Additionally, he referred to records showing respondent reportedly used aliases and different
birth dates during contact with law enforcement. He also testified about respondent’s
intimate life, as respondent stated that he could not meaningfully relate, including sexually,
to anyone near his age. During their interview, respondent described having a relationship
with a much older woman prior to his imprisonment and dating older women while an
adolescent.
¶ 19 Moreover, Dr. Leavitt testified that respondent’s behavior while in DOC custody was
relevant in forming his opinion. He testified about two particular incidents involving sexual
misconduct that occurred while respondent was in the DOC’s juvenile division. The first
incident, which occurred in February 2002, involved the staff observing respondent “firmly”
grabbing another resident’s buttocks and laughing when the staff reprimanded him. The
second incident, occurring a few weeks later, involved the staff observing respondent trying
to retaliate against another resident by grabbing the other resident’s buttocks. Dr. Leavitt
indicated that these incidents demonstrated respondent’s inability or refusal to control his
impulses, even in a structured environment.
¶ 20 Dr. Leavitt opined about respondent’s behavior while in a DHS treatment and detention
facility that he found relevant. In March 2009, a drawing of a nude child with a male figure
standing over the child was discovered in respondent’s laundry. In April 2010, respondent
was investigated for creating and distributing child pornography on a flash drive to other
residents.2 The DVD reportedly contained enlarged images of young children’s private parts,
such as genitals and buttocks. Dr. Leavitt admitted that he did not see the images depicted
in the drawing or on the DVD. He believed that this showed respondent’s preoccupation with
young males. During the four years while respondent was there, the records showed that
respondent had numerous notations and violations of rules, including a physical fight in July
2010 with a resident believed to be involved in the DVD investigation, which exhibited
respondent’s behavioral problems consistent with antisocial attitude.
¶ 21 He also testified about whether respondent participated in sex offender treatment. He did
not know if such treatment was offered while respondent was in DOC custody. He noticed
respondent briefly attended a few sessions early on before withdrawing. Respondent also
participated in a few groups, but overall, Dr. Leavitt saw no indication that respondent
2
The record refers to the material as a DVD and a flash drive. We will use the term “DVD”
in this opinion for consistency.
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participated in specific sex offender treatment for a sustained period. When they met in 2007,
respondent told him that treatment “would be a waste of time,” but that he would attend if
required to do so.
¶ 22 Dr. Leavitt testified that he relied upon the Diagnostic and Statistical Manual of Mental
Disorders (Fourth Edition) Text Revised (DSM-IV-TR), an authoritative manual in his field,
in making his diagnosis. He formed an opinion, within a reasonable degree of psychological
certainty, that respondent suffered from a mental disorder of pedophilia, with a secondary
diagnosis of antisocial personality disorder. He also testified about the age of onset for an
offender in diagnosing pedophilia disorder as respondent was 15 years and 8 months old
when he committed the 2000 offense. He opined that the incidents in the DHS facility
confirmed his opinion as they involved continued sexually deviant behavior, even in a
structured environment. He emphasized that pedophilia is the mental disorder affecting
respondent to commit future sexually violent acts and described how the two diagnoses
worked together, with the secondary diagnosis serving as an additional risk factor regarding
respondent’s refusal or inability to adhere to any external controls.
¶ 23 Dr. Leavitt testified about the criteria he considered in making his diagnosis of
respondent’s antisocial personality disorder: since age 15, he demonstrated a general
disregard and disdain for rules and welfare of others, manifested by the tendency to break
societal rules that led to arrest and/or incarceration, and the disciplinary violations that
respondent accrued.
¶ 24 Dr. Leavitt used and relied upon three actuarial instruments in forming his opinion. The
Static 99, which was the most widely used in the field for placing an individual in the risk
category of recidivism, contained 10 items. A score of six or higher was considered high risk
of reoffending; respondent scored an eight. The Static 99R was a revised version of this
instrument and included an adjustment of the age-related (and first) factor. Respondent also
scored an eight on this instrument, which placed him in a high risk category. Dr. Leavitt also
utilized the Minnesota Sex Offender Screening Tool Revised (MnSOST-R) that contained
16 items. The score was based on a combined record review and self-reported information
to place the individual within a risk category over a six-year period of time to determine
whether the person would be re-arrested for committing a sexually offensive act. Using this
instrument, respondent scored nine, which placed him in a high risk category. Dr. Leavitt
explained that this score translated into a 57% likelihood of an arrest for a sexual offense
within six years. He noted that the actuarial tests were starting points and were more likely
to underestimate the risk of reoffending.
¶ 25 In addition to the instruments, Dr. Leavitt testified about dynamic factors (potentially
changeable factors) he considered that further substantiated understanding of an individual’s
risk level. He viewed respondent’s history in applying five factors. First, he testified about
respondent’s early onset and persistence and/or preoccupation with young male children and
difficulty controlling impulses. Second, he noted respondent’s lack of meaningful sexual or
dating relationships with age-appropriate persons. Third, he cited respondent’s difficulty with
sexual impulses and urges, anger, and lack of appreciation for self. Fourth, he testified about
respondent’s long-standing history of antisocial behavior, showing “clear resistance to
supervision,” and resistance to personal change. Finally, he addressed relevant protective
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factors, namely, what respondent had done with respect to sex offender specific treatment
and the person’s age. He found no protective factors applied to respondent. He noted that
respondent was not over 50 or 60 years old and did not have a life-threatening health
condition that would reduce the risk of recidivism. He stated that the actuarial scores,
dynamic risk factors, and protective factors worked together in forming his opinion about
respondent’s potential for reoffending. He opined, to a professional degree of certainty, that
due to respondent’s pedophilia, there was a substantial probability of respondent reoffending.
His conclusion was the same as when he first interviewed respondent in 2007, but was more
solidified as of the date of his testimony, based upon respondent’s behavior over the past few
years that included continued indications of pedophilia and antisocial behavior, even within
a highly structured environment, and no sustained information of any sex offender treatment.
He updated his opinion by reviewing records dated up to February 14, 2011.
¶ 26 On cross-examination, Dr. Leavitt admitted that he had not met with or spoken to
respondent since the January 2007 interview. He did not speak with any other psychologist
who evaluated respondent or any of the victims or respondent’s friends, noting that speaking
to witnesses, victims, or persons involved in the investigation was not part of protocol. When
respondent’s counsel questioned him about how he determined the onset age for his
pedophilia diagnosis, Dr. Leavitt stated that the age at the time of diagnosis was relevant in
making his diagnosis. While he did not view the images on the DVD, Dr. Leavitt emphasized
that the reports he reviewed indicated that the DVD contained suggestive, sexual images of
young male children, which matched respondent’s victim profile. He also clarified the DVD
contained downloaded images, enlarged to focus on particular body parts, and were unlike
illustrations at issue with the other behavioral incident in DHS facility.
¶ 27 Although antisocial personality disorder was not the mental disorder that rendered
respondent an SVP under the Act, the disorder was a risk factor that increased the likelihood
of increased sexual acts and displayed respondent’s general propensity to engage in criminal
behavior. He emphasized respondent’s behavior, and not the age of residents involved in the
minor violations, was key as it demonstrated inappropriate behavior and disregard for rules
within the structured setting. While he considered the actions could have been horse playing
and did not consider whether they were imitating athletes by grabbing each other’s buttocks,
he distinguished respondent’s actions as firmly grabbing the other resident’s buttocks, which
was uncommon and inappropriate, respondent laughed it off, and respondent repeated the
behavior two weeks later.
¶ 28 Respondent’s counsel questioned him about his use of the actuarial instruments. He
clarified that the instruments assessed the likelihood of reoffending and did not predict
whether respondent would reoffend. Dr. Leavitt emphasized that he considered the overall
offending behavior involved in the 2005 offense, not just that respondent reportedly lured
the victim into the car, in determining force used. Similarly, he testified that when he
reexamined the individual dynamic risk factors, he found respondent’s nonparticipation in
sex offender treatment rendered it unlikely in assessing whether such treatment was
meaningfully impacted.
¶ 29 On redirect examination, Dr. Leavitt stated that even after he found out about the age
discrepancy, his opinion regarding respondent remained unchanged. After the trial court
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overruled the objection, Dr. Leavitt explained that the enlarged images of the private areas
of characters on the DVD led to his conclusion that, minimally, sexually suggestive pictures
of young children were consistent with respondent’s victim profile and demonstrated
unresolved and continued preoccupation with young male children.
¶ 30 Gaskell Testimony
¶ 31 The State then called Dr. Steven Gaskell to testify.3 The trial judge admonished the jury
about the limited purpose for his testimony and advised the jury that it determined the
credibility of the witness’s testimony. Dr. Gaskell testified that he had been a licensed
psychologist for 12 years and was licensed in Illinois and Georgia. He stated that he had a
contract with the DHS to perform evaluations for sexually violent persons, which included
conducting evaluations of individuals already found to be SVPs, and to prepare
predisposition investigation reports and supplemental reports.
¶ 32 Dr. Gaskell testified that he received his bachelor’s degree in psychology from the
University of Minnesota and completed his doctoral degree from the Minnesota School of
Professional Psychology. He conducted evaluations for courts while working at a Georgia
hospital, and he performed SVP evaluations and gave expert testimony in Kansas courts. As
part of a contract with the DHS since July 2005 to perform evaluations for sex offenders and
potential SVPs, he conducted 325 evaluations for 150 sex offenders. In a clinical internship
at Florida State Hospital, he conducted pretrial evaluations and risk assessments. He was an
approved member of the Illinois Sex Offender Management Board for evaluations and had
training in use of actuarial instruments. He noted that he had been previously qualified as an
expert in clinical psychology, specifically regarding sex offender evaluation and risk
assessment. At this point, Dr. Gaskell was tendered and qualified as an expert in the field,
with no objection by respondent.
¶ 33 Dr. Gaskell testified that he conducted a clinical evaluation of respondent in 2007 to
determine if he was a candidate for commitment under the Act. He also testified that he
reviewed the respondent’s master file, prior reports, and behavioral and treatment records in
forming his opinion. His interview with respondent in late August 2007 lasted about 2½
hours after respondent consented to the interview in an initial meeting with him in early
August 2007 that lasted about 1¼ hours. His interview was reduced to writing in a report
dated September 5, 2007. He prepared a subsequent report dated February 17, 2009, based
upon his review of respondent’s behavioral and treatment records. He also rendered an
addendum to the subsequent report (dated February 22, 2009) after conducting a
psychological status examination. Prior to his testimony, he indicated he reviewed the
records from the last examination on February 22, 2009, and dated up to February 14, 2011.
¶ 34 Dr. Gaskell testified about the documents and materials he considered in forming his
opinion. He noted that information regarding respondent’s criminal history was relevant for
3
Shortly before trial, the trial court granted respondent’s motion in limine to exclude
testimony from Dr. Gaskell regarding a rescored test that he conducted. He was permitted to testify
about his opinion based upon materials disclosed in discovery as of the February 14, 2011, deadline.
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forming his opinion. He testified about the 2000 offense and the 2005 offense, to which
respondent entered a guilty plea. He noted that both incidents involved nine-year-old male
victims. Furthermore, he considered at least eight findings of juvenile delinquency, with half
occurring prior to age 15 and the other half occurring after that age. He characterized the
findings as four for battery, one for arson, two for damage to property, and one for a
probation violation. He also discussed incidents that led to major violations for events
occurring in 2010 while respondent was in DHS custody. He stated that respondent
participated for one day in sex offender treatment while in custody.
¶ 35 Furthermore, Dr. Gaskell testified that he diagnosed respondent with pedophilia and
antisocial personality disorder to a reasonable degree of psychological certainty, both of
which made it substantially probable that respondent would commit future acts of sexual
violence. He also relied upon the DSM-IV-TR in making his diagnoses. He explained that
pedophilia usually began in adolescence and continued into adulthood. A pedophilia
diagnosis involved a person having, over a period of at least six months, recurring, intense,
sexually arousing urges, fantasies or behaviors involving sexual activity with a prepubescent
child, the individual either had to have acted upon the urges or the urges themselves had to
have caused the person impairment or distress, and the individual had to be at least 16 years
old and at least 5 years older than the victim. He clarified that the 16-year-old age criterion
was the age at the time of diagnosis and applied to respondent because his behavior began
at age 15 years and 8 months and continued to the second offense, which occurred for a
period over five years. Respondent’s pedophilia was a congenital or acquired condition
affecting respondent’s emotional volitional capacity.
¶ 36 As for the antisocial personality disorder, Dr. Gaskell described the criteria as a
“pervasive pattern of disregard for and violation of the rights of others” occurring since the
individual was 15 years old and prior to that age. Based upon his review of the materials
provided to him about respondent, Dr. Gaskell opined that the materials showed the disorder
conduct manifested prior to age 15 due to his juvenile delinquency findings. He noted that
respondent had four or five juvenile delinquency findings prior to age 15. As an adult,
respondent had shown a failure to conform to social norms based upon his repeated acts
leading to arrests over 10 times and 3 convictions. He also discussed various other criteria
including deceitfulness, evidenced by repeated lying, use of aliases, and manipulating others
for personal gain or pleasure. Here, he cited respondent’s various aliases and birthdates, and
the manipulation involved in the 2005 offense leading to his conviction. Respondent
exhibited reckless disregard for the safety of others, evidenced by the 2000 and 2005
offenses, as well as several batteries and assaults on others.
¶ 37 Dr. Gaskell testified that respondent’s pedophilia predisposed him to commit future acts
of sexual violence, in that he had recurrent, sexual urges and fantasies to act with a child.
¶ 38 Dr. Gaskell testified about how he reached his opinion about respondent’s recidivism.
He stated that respondent scored in the high risk range on the two actuarial instruments used
to conduct a risk assessment. He also considered other risk and protective factors to reach
a total risk assessment. He utilized the Static 99 and the MnSOST-R, on both of which the
respondent scored an eight. He used two instruments, because neither instrument covered all
of the risk factors associated with sexual reoffending as they both had a different set of risk
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factors. In addition to the risk factors covered under the actuarials, Dr. Gaskell also used the
five dynamic risk factors based upon research affiliated with sex offender recidivism: sexual
interest in children, antisocial personality disorder, employment instability, early onset of
sexual reoffending, and separation from parents. He also considered factors that would show
a decreased risk of reoffending, such as age, health status, and progress in sex offender
treatment. As to respondent, none of the decreased risk factors were present, given that
respondent’s age was associated with the highest risk of recidivism, he had no health or
medical condition that would prevent him from reoffending, and he had only been in
treatment for one day. Based upon his review of the master file and all of the records, and the
results of the risk assessments utilized, Dr. Gaskell opined, with a reasonable degree of
psychological certainty, that respondent was substantially probable, or more likely than not,
to commit future acts of sexual violence. He also opined, to a reasonable degree of
psychological certainty, that respondent was dangerous due to his mental disorders that
predisposed him to commit such acts.
¶ 39 On cross-examination, Dr. Gaskell clarified that respondent’s pedophilia, coupled with
his antisocial personality disorder, predisposed respondent to commit future acts of sexual
violence. He stated that the personality disorder alone could serve as a basis for recidivism.
¶ 40 Respondent’s Case
¶ 41 After the trial judge’s admonishments to respondent, respondent indicated that he did not
wish to testify. Although the State had not yet rested, respondent moved for a directed
finding, arguing about the witnesses’ conflicting testimony regarding which mental disorder
caused the risk of reoffending and the age onset of the mental disorder (pedophilia) at issue.
The trial judge denied the motion. At the end of the State’s case, the State sought to enter a
certified copy of respondent’s 2005 conviction into evidence. During a sidebar, respondent’s
counsel objected to the entire document being published to the jury, because it contained the
other counts for which he was not convicted. When the jury returned, the prosecutor noted
to the jury, once the exhibit was admitted, that the certification established that respondent
had been convicted of the sexual offense counts in 2005. The State then rested.
¶ 42 The respondent rested without presenting any witnesses or other evidence on his behalf.
¶ 43 Closing Arguments, Jury Deliberations and Commitment Order
¶ 44 Following closing arguments and the trial judge’s instruction to the jury, the jury
deliberated and returned a verdict finding respondent was a sexually violent person as
defined by the Act. Immediately following the trial court’s entry of judgment on the verdict,
the State then requested entry of an order committing respondent to a secure facility for
detention and treatment. Respondent’s counsel objected, indicating that he had a witness he
wanted to present in support of a request for conditional release and requested a
predisposition evaluation be conducted. The trial judge overruled the respondent’s objection
and determined that he had sufficient information based upon the testimony presented at trial
to enter an order committing respondent to a secure facility for treatment.
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¶ 45 Posttrial Proceedings
¶ 46 On April 22, 2011, respondent filed a posttrial motion seeking a new trial, or
alternatively, to set aside the verdict and vacate the order of commitment to provide for his
conditional release. The motion contended that the trial court committed various errors,
including allowing the State to shift the burden improperly to him by the prosecutor’s
remarks about his custodial status and denying his motion for retrial after the prosecutor’s
improper comments that violated the orders in limine regarding the limited use of the
experts’ testimony during closing argument, and that the State failed to prove that he suffered
from a mental disorder that made it substantially probable he would commit future acts of
sexual violence as required by the Act. Following a hearing on June 13, 2011, the trial court
denied respondent’s motion. The respondent filed a timely notice of appeal with this court
on July 12, 2011.
¶ 47 DISCUSSION
¶ 48 In the instant appeal, respondent argues that the State’s improper remarks during its
closing argument violated the orders in limine and denied him a fair trial, contends the trial
court erred in denying his motion for mistrial following the State’s improper remarks,
challenges the sufficiency of the evidence that he was an SVP under the Act, and asserts that
the trial court denied him his right to a dispositional hearing under the Act. We will address
each argument in turn.
¶ 49 Propriety of Prosecutor’s Remarks During Closing Argument
¶ 50 We first consider respondent’s claim that the prosecutor impermissibly commented on
his custodial status and argued expert testimony allowed under Wilson v. Clark, 84 Ill. 2d 186(1981), as substantive evidence during its closing argument that violated orders in limine and
deprived him of a fair trial. Before we discuss the merits of respondent’s argument, however,
we address the appropriate standard of review.
¶ 51 As the parties’ briefs reflect, there is an apparent conflict among the districts in this court,
including within our own First District, regarding the applicable standard of review on this
issue following our supreme court’s rulings in People v. Blue, 189 Ill. 2d 99 (2000), and
People v. Wheeler, 226 Ill. 2d 92 (2007). It is well established that prosecutors have wide
latitude in making closing argument. Wheeler, 226 Ill. 2d at 123. The prosecution is allowed
to comment on the evidence and draw reasonable inferences from the evidence. In re
Commitment of Kelley, 2012 IL App (1st) 110240, ¶ 42. Prosecutorial misconduct in closing
argument warrants a new trial and reversal if the improper comments were a material factor
in the respondent’s conviction. Wheeler, 226 Ill. 2d at 123. “If the jury could have reached
a contrary verdict had the improper remarks not been made, or the reviewing court cannot
say that the prosecutor’s improper remarks did not contribute to the defendant’s conviction,
a new trial should be granted.” Wheeler, 226 Ill. 2d at 123 (citing People v. Linscott, 142 Ill.
2d 22, 28 (1991)). Our supreme court has repeatedly denounced and affirmed its intolerance
for prosecutorial misconduct. See Wheeler, 226 Ill. 2d at 121-22 (and discussion and cases
cited therein).
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¶ 52 In Wheeler, 226 Ill. 2d at 121, which respondent cites, the supreme court found that
determining whether the prosecutor’s remarks were so egregious as to warrant a new trial is
an issue reviewed de novo. Although the State acknowledges Wheeler, the State reasons that
our review of such comments is for an abuse of discretion since the ultimate determination
revolves around questions of fact. The State asserts that Wheeler favorably cited Blue, which
pronounced the abuse of discretion standard for reviewing a prosecutor’s remarks during
closing argument. See Wheeler, 226 Ill. 2d at 121-22. In People v. Land, 2011 IL App (1st)
101048, ¶¶ 148-50, the sixth division of the First District discusses various opinions,
including rulings from different divisions of the First District, containing different analyses
of the standard of review when considering the propriety of the prosecutor’s remarks in
closing argument. We need not weigh in on the disagreement, as we conclude that the State’s
remarks were proper under both standards. See Land, 2011 IL App (1st) 101048, ¶ 151.
¶ 53 Having addressed the standard of review, we now consider the specific remarks made by
the prosecutor that the respondent challenges. The State argues, however, that the respondent
has forfeited review of certain remarks as he failed to object at trial and raise the objections
in his written posttrial motion. The law is well established that in order to preserve an issue
for appeal, the party must state objections during trial and in a written posttrial motion.
People v. Enoch, 122 Ill. 2d 176, 186 (1988). A failure to do so results in forfeiture of the
claim on appeal. Id. Nonetheless, we consider the complained-of comments, even those
remarks that were not timely objected to, made in the entire context of the closing argument.
In considering respondent’s claim, we focus on the remarks properly preserved for appeal.
See Wheeler, 226 Ill. 2d at 122-23.
¶ 54 Respondent argues that the State devoted the first nine minutes of its closing argument
to making improper comments, which individually or collectively, caused him undue
prejudice and warrant a new trial. Respondent challenges the State’s following remarks made
during closing arguments:
“THE STATE [Assistant State’s Attorney]: [Respondent] has been you have heard
since 2007, in a department of human services facility that focuses in–
MR. COYNE [respondent’s counsel]: Objection.
THE COURT: Overruled.
THE STATE: That focuses in specifically on sex offender treatment. And he has
refused to participate in sex offender treatment.”
¶ 55 Respondent also challenges the prosecutor’s continued closing remarks that, “[y]ou heard
he’s had over 25 probation violations.” The trial court overruled respondent’s objection. This
statement was made at the end of the following remarks by the State, which provide the
context in which the statement was made:
“Now we all know that people can touch other people inadvertently.
But this touching was such that this little boy felt so uncomfortable that he went to
his mother. And his mother was reasonable in that case. You heard that from the doctors.
And said to the police, look, even though you’re qualifying this as criminal sexual abuse,
I will agree to have it go into the juvenile system as a battery if he gets help.
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***
You heard how he continued, even after that sexual contact with the police, with this
sexual offense, he continued to be in and out of juvenile detention during his juvenile
years, into his adulthood. You heard how he committed cases of arson and criminal
damage to property, how he possessed stolen motor vehicles. He has criminal trespass
to vehicles. He’s had assaults.”
¶ 56 Respondent then asserts that the State concluded its remarks by stating, “[l]adies and
gentlemen, just all that in and of itself before you, without an expert opinion, anyone can say
there’s something wrong here.” While respondent’s argument continues that the State
commented in detail about respondent’s behavior in the DHS facility, the text provides the
relevant context in which the statements were made that we must consider. In particular, the
prosecutor then refers to the two expert opinions proffered from psychologists whose
opinions on the diagnoses were “solidified” because of respondent’s behavior at the DHS
facility. Clearly, the State was arguing about respondent’s behavior considered by the doctors
in forming their respective opinions, which was in line with Wilson and the orders in limine.
Similarly, the State’s remarks did not improperly shift the burden of proof to respondent, but
merely summarized the bases for the expert witnesses’ opinions, including how the lack of
sex offender treatment was considered in their risk assessment to determine the substantial
probability of respondent committing future acts of sexual violence. We also agree with the
State that respondent’s reliance upon People v. Johnson, 218 Ill. 2d 125 (2005), and People
v. Beasley, 384 Ill. App. 3d 1039 (2008), is misplaced.
¶ 57 Respondent concedes that he failed to object to the prosecutor’s comments in rebuttal,
but urges us to consider them in the context of the entire argument (Wheeler, 226 Ill. 2d at
123) and for plain error under Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967). Yet,
the State argues that because the SVP commitment proceedings are civil in nature, this court
should not consider plain error under the civil forfeiture doctrine. As we have found that the
prosecutor’s remarks were proper and not erroneous, we also need not resolve which plain
error analysis applies in the instant case. See People v. Sargent, 239 Ill. 2d 166, 189 (2010)
(in criminal case, reviewing court must first determine if error occurred in determining
applicability of plain error analysis); Reed v. Ault, 2012 IL App (2d) 110744, ¶ 33 (same for
civil appeal); see also In re Commitment of Curtner, 2012 IL App (4th) 110820, ¶¶ 26-27
(briefly discussing application of plain error doctrine in proceedings under the Act).
¶ 58 Additionally, we do not find that the prosecutor’s remarks violated the orders in limine.
We review the judge’s ruling for an abuse of discretion. Kelley, 2012 IL App (1st) 110240,
¶ 33. An abuse of discretion occurs where the ruling is arbitrary, fanciful, or so unreasonable
that the opposite conclusion is obvious. Id. The State’s comments regarding respondent’s
custodial status and the expert witnesses’ conclusions did not clearly violate the orders in
limine.
¶ 59 Motion for Mistrial
¶ 60 The respondent argues that the trial judge abused his discretion in denying his motion for
mistrial due to the prosecutorial remarks during closing argument as discussed previously
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herein. We review a trial court’s ruling on a motion for mistrial for an abuse of discretion.
People v. Nelson, 235 Ill. 2d 386, 435 (2009). “A trial court abuses its discretion when its
decision is ‘fanciful, arbitrary, or unreasonable to the degree that no reasonable person would
agree with it.’ ” People v. Zirko, 2012 IL App (1st) 092158, ¶ 32 (quoting People v. Ortega,
209 Ill. 2d 354, 359 (2004)); In re Detention of Lieberman, 379 Ill. App. 3d 585, 609 (2007).
As we have concluded that the prosecutor’s comments were not improper and did not
warrant a new trial, we similarly conclude that the trial judge did not abuse his discretion
when he denied respondent’s motion based upon the comments.
¶ 61 Sufficiency of the Evidence
¶ 62 Next, respondent contends that the State failed to prove beyond a reasonable doubt that
he was an SVP as defined by the Act. When reviewing claims challenging the sufficiency of
the evidence, we consider whether any rational trier of fact would have found the evidence,
drawing all reasonable inferences in the State’s favor, established the elements of the offense.
Lieberman, 379 Ill. App. 3d at 598. When considering such claims, the reviewing court does
not retry the respondent, as the trier of fact (the jury in this instance) was in the best position
to weigh evidence and assess the credibility of the testimony and evidence presented at trial.
Wheeler, 226 Ill. 2d at 114-15.
¶ 63 In order to establish that respondent was an SVP under the Act, the State had to show that
he was a person convicted of a sexual offense, he had a mental disorder, and he was
dangerous to others because his mental disorder created a substantial probability that he
would engage in acts of sexual violence. 725 ILCS 207/5(f), 15(b)(1)(A), (b)(4), (b)(5) (West
2010). At trial, the State had the burden of proving beyond a reasonable doubt the above
criteria. 725 ILCS 207/35(d)(1) (West 2010). Respondent does not dispute that the State
established the first criterion–that he was convicted of a sexually violent offense. Rather,
respondent asserts that the State failed to establish the second and third criteria.
¶ 64 Respondent maintains that because the State’s expert witnesses’ testimony about the
mental disorder that he was diagnosed with–pedophilia–conflicted with the DSM-IV-TR, the
State failed to show that respondent had a mental disorder. In particular, respondent asserts
that the State’s experts diagnosis conflicted with the manual, because the onset age differed
from that in the manual. Notably, both Dr. Leavitt and Dr. Gaskell initially stated that
respondent met the criteria for pedophilia, because of the onset age of 16 as reflected in the
manual. Yet, they discovered after their evaluation that the respondent was actually 15 years
old and 8 months when he committed the first offense that they considered in forming their
opinions.
¶ 65 Additionally, respondent maintains that the State’s experts contradicted each other to the
extent that one expert testified that respondent’s pedophilia alone created the substantial
probability of recidivism, whereas the other indicated that his pedophilia and the antisocial
personality disorder created the substantial probability that he would commit future acts of
sexual violence. While respondent insists that his argument does not attack the credibility of
the witnesses, we disagree. The jury, as the trier of fact, was free to determine the credibility
of the State’s witnesses in considering whether the State proffered sufficient evidence to
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show that respondent suffered from a mental disorder. The jury’s findings regarding
credibility are accorded great weight. Wheeler, 226 Ill. 2d at 115. As the record contains
sufficient, uncontroverted testimony from the State’s witnesses that respondent suffered from
a mental disorder of pedophilia, we reject respondent’s argument.
¶ 66 Furthermore, respondent asserts that the State failed to prove the third element–that the
mental disorder created a substantial probability that he would commit future acts of
violence. For purposes of the Act, substantial probability is defined as “more likely than not.”
(Internal quotation marks omitted.) In re Detention of Bailey, 317 Ill. App. 3d 1072, 1086
(2000). In particular, respondent challenges the experts’ use of the actuarial instruments in
making their diagnosis, claiming that the instruments were not reliable sources in the field.
Again, we find respondent’s arguments attack the credibility of the witnesses’ testimony. As
we previously stated, the jury, as the trier of fact, was free to assess credibility of the
witnesses’ testimony about why they utilized certain actuarial instruments. Wheeler, 226 Ill.
2d at 114-15. Respondent’s counsel vigorously cross-examined the witnesses about the
reliability of the actuarial instruments, how they scored respondent based upon the actuarial
tools, and the ultimate conclusion reached about the respondent’s high risk of reoffending.
Both also testified that they considered dynamic factors, along with the actuarial instruments
used, in forming their opinions. The jury was free to consider their testimony and assess the
appropriate credibility of their testimony. Apparently, the jury found their unrefuted
testimony credible as it returned a verdict in the State’s favor finding that these two elements,
along with the first regarding the underlying conviction for a sexual offense, had been proven
beyond a reasonable doubt. Accordingly, respondent’s challenge to the sufficiency of the
evidence against him fails.
¶ 67 Dispositional Hearing
¶ 68 Finally, we consider respondent’s claim that the trial judge denied him a dispositional
hearing as mandated by the Act (725 ILCS 207/40(b)(1) (West 2010)) before entering the
commitment order. Alternatively, he argues that the trial court failed to conduct a
“meaningful” disposition hearing following the entry of a judgment on the jury’s verdict
finding him to be an SVP. As respondent’s claim presents a question of statutory
interpretation, our review is de novo. People v. Gutman, 2011 IL 110338, ¶ 12; Taddeo v.
Board of Trustees of the Illinois Municipal Retirement Fund, 216 Ill. 2d 590, 595 (2005).
The primary objective in construing a statute is to ascertain and effectuate the intent of the
legislature, best accomplished by viewing the statute’s plain and ordinary language. People
v. Amigon, 239 Ill. 2d 71, 84-85 (2010). The statute is considered as a whole, with words and
phrases considered in light of other statutory provisions; each word and phrase is given its
reasonable meaning and not considered superfluous. People ex rel. Sherman v. Cryns, 203
Ill. 2d 264, 279-80 (2003). “We may not depart from the statute’s plain language by reading
in exceptions, limitations, or conditions that conflict with the legislature’s intent.” Amigon,
239 Ill. 2d at 85. Furthermore, we do not construe a statutory provision to intend absurd,
inconvenient, or unjust results. People v. Christopherson, 231 Ill. 2d 449, 454 (2008).
¶ 69 The provision regarding dispositional hearings under the Act provides in relevant part:
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“The court shall enter an initial commitment order under this Section pursuant to a
hearing held as soon as practicable after the judgment is entered that the person ***
is a sexually violent person. If the court lacks sufficient information to make the
determination required by paragraph (b)(2) of this Section immediately after trial, it
may adjourn the hearing and order the Department [of Human Services] to conduct
a predisposition investigation or a supplementary mental examination, or both, to
assist the court in framing the commitment order.” 725 ILCS 207/40(b)(1) (West
2010).
Immediately after entering the judgment on the jury’s verdict finding respondent was an SVP
under the Act, the trial judge asked respondent’s counsel, “what’s next?” Respondent’s
counsel responded that “I believe we have to select a date.” The State then moved for
immediate entry of an order committing respondent to institutional care and treatment in a
secure DHS facility. Respondent’s counsel objected, indicating that he wished to present
certain evidence that had not been adduced at trial. In overruling the objection, the trial judge
stated:
“Based on the evidence that I heard from the two expert witnesses, about the substantial
background and pattern of behavior, I believe I am allowed statutorily to find that he now
be sent for treatment. That’s what I am ordering, that he go to the [treatment and
detention facility] for treatment pursuant to statute.”
Further, respondent points to the trial judge’s continued comments following respondent’s
objection:
“If we have a dispositional hearing. I think pursuant to statute I’m entitled at this stage
based on what I heard, to make that determination independently. So that’s what I am
going to rule.”
¶ 70 Respondent maintains that the Act required a hearing that enabled him to present
additional evidence and testimony before the commitment order was entered. Respondent
argues that the proceeding was necessary, because he could not present evidence against
commitment or for conditional release in his case-in-chief as he would be admitting that he
was an SVP. He also insists that the trial judge’s commitment order here was entered without
considering the criteria set forth in section 40(b)(2) of the Act (725 ILCS 207/40(b)(2) (West
2010)). Section 40(b)(2) of the Act provides, in relevant part:
“In determining whether commitment shall be for institutional care in a secure facility
or for conditional release, the court shall consider the nature and circumstance of the
behavior that was the basis of the allegation in the petition***, the person’s mental
history and present mental condition, *** and what arrangements are available to ensure
that the person has access to and will participate in necessary treatment.” 725 ILCS
207/40(b)(2) (West 2010).
¶ 71 Respondent correctly notes that this statutory question presents an issue of first
impression for the First District of this court. In support of his contention that the Act
requires a separate dispositional hearing, respondent cites the Third District’s ruling in
People v. Winterhalter, 313 Ill. App. 3d 972 (2000). He also provides the dictionary
definitions of selected words, such as “shall,” “hearing,”and “pursuant,” contained in section
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40(b) of the Act to buttress his argument. While noting a contrary ruling was issued by the
Second District of this court in In re Detention of Tittlebach, 324 Ill. App. 3d 6 (2001),
respondent argues Tittlebach was wrongly decided, because the Tittlebach court failed to
comply with statutory interpretation rules, including ignoring language in section (40)(b)(1)
of the Act by considering language in the preceding section (see 725 ILCS 207/40(a) (West
2010)).
¶ 72 The State, on the other hand, describes the conflict in rulings as “illusory,” agrees that
the statute requires a hearing in entering the commitment order, and frames the germane
issue as whether the provision vests the trial court with discretion over the scope of hearing.4
We need not determine whether Tittlebach was decided wrongly, which we do not, as we
review this question of law de novo. Gutman, 2011 IL 110338, ¶ 12. Additionally, we are not
bound by the decisions of other appellate districts (O’Casek v. Children’s Home & Aid
Society of Illinois, 229 Ill. 2d 421, 440 (2008)) or the trial court’s implied interpretation as
part of our de novo review (see Hartz Construction Co. v. Village of Western Springs, 2012
IL App (1st) 103108, ¶ 23 (de novo review involves examining evidence unconstrained by
the trial court’s reasoning)).
¶ 73 Guided by well-established statutory interpretation rules, we hold that the Act’s plain
language requires the trial court to conduct a hearing before entering the commitment order.
725 ILCS 207/40(b)(1) (West 2010). Similarly, we construe the Act as granting the trial court
discretion not to adjourn the proceedings where the court believes neither a supplemental
examination nor a predisposition investigation is required in framing its commitment order.
725 ILCS 207/40(b)(1) (West 2010). Continuation of a hearing lies within the trial court’s
discretion. People v. Weeks, 2011 IL App (1st) 100395, ¶ 30; Somers v. Quinn, 373 Ill. App.
3d 87, 96 (2007). However, we find that the language in the Act does not allow the trial court
to deny a respondent his right to present evidence and testimony addressing the factors set
forth in section 40(b)(2) of the Act (725 ILCS 207/40(b)(2) (West 2010)) or in mitigation of
commitment to a secure facility during the dispositional phase.
¶ 74 In the case sub judice, the trial court proceeded with an immediate dispositional hearing
following the entry of a judgment on the jury’s verdict, despite respondent’s request to
4
At the end of its response brief, the State baldly asserts that even if the trial court failed to
conduct a dispositonal hearing, any such failure should be considered harmless error. Without
elaborating on and citing to authority in support of this argument, the point is forfeited. See Ill. S.
Ct. R. 341(h)(7) (eff. July 1, 2008); Walters v. Rodriguez, 2011 IL App (1st) 103488, ¶¶ 5-6.
However, the State contends, in a petition for rehearing, that this court overlooked the
authority cited for its assertion. While we acknowledge that the State cited Tittlebach, 324 Ill. App.
3d at 12-13, and Winterhalter, 313 Ill. App. 3d at 980, prior to its conclusory statement, we note that
the Winterhalter and Tittlebach courts did not find that the trial courts erred at all or even applied
harmless error analysis in how the courts proceeded with the dispositional phase following the SVP
verdicts and judgments thereon. As we concluded that the trial court erred in the manner in which
it proceeded with the dispositional hearing based upon the record before us (see ¶¶ 73-74 herein),
we find the State’s reliance on the cases for this point is misplaced.
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schedule a hearing to allow him to present a witness and have a predisposition evaluation
conducted before the commitment order was entered. Even if the trial court determined that
a predisposition evaluation was unnecessary, the trial court erred and did not comply with
the language in the Act when it failed to hold an immediate hearing or adjourn the
proceedings to afford respondent the opportunity to present testimony to address the factors
outlined in section 40(b)(2) of the Act before the commitment order was entered. Unlike the
respondents in Winterhalter and Tittlebach, respondent here indicated that he wished to
present testimony for the trial court’s consideration regarding the appropriate disposition. See
Tittlebach, 324 Ill. App. 3d at 12; Winterhalter, 313 Ill. App. 3d at 981. Simply put, holding
an immediate hearing or continuing the hearing to allow respondent to proffer additional
evidence and testimony would have served the interests of justice, namely, framing the
appropriate commitment order following the SVP finding. People ex rel. Reid v. Adkins, 48
Ill. 2d 402, 406 (1971).
¶ 75 The State insists that respondent’s counsel should have been prepared to present any
additional testimony or evidence at dispositional hearing immediately after trial as the trial
dates were set. While the trial dates may have been set, respondent was not required to
present any evidence during trial as he was presumed innocent and the State had the burden
of proof during trial. 725 ILCS 207/35(d)(1) (West 2010); but see Tittlebach, 324 Ill. App.
3d at 9 (during bench trial, respondent introduced testimony from doctor that addressed
element of substantial probability of reoffending); Winterhalter, 313 Ill. App. 3d at 975
(during trial, psychiatrist testified for respondent that he was unlikely to commit future acts
of sexual violence). Thus, respondent did not have to prepare a witness for a dispositional
hearing that may not have occurred. Additionally, the Act provides for the initial
commitment order to be entered “pursuant to a hearing held as soon as practicable after the
judgment is entered that the person *** is a sexually violent person.” (Emphasis added.) 725
ILCS 207/40(b)(1) (West 2010). “As soon as practicable” does not necessarily mean that the
hearing had to occur immediately after trial. Adjourning the proceedings, even if for a day,
would have been practicable to allow introduction of additional testimony or evidence for
the trial judge’s consideration in framing the commitment order. Since respondent was
ordered detained in a secure DHS facility pending the proceedings, there was no danger that
respondent would be released before the dispositional hearing concluded.
¶ 76 In its petition for rehearing, the State also urges us to reconsider our finding regarding
respondent’s claim about the dispositional hearing conducted following the trial court’s
judgment on the jury’s verdict finding him to be an SVP. From the outset, we note, and the
State acknowledges, that its citation to an unpublished order in this court lacks precedential
value as Illinois Supreme Court Rule 23(e)(1) (eff. July 1, 2011) expressly provides that
“[a]n order entered under *** this rule is not precedential and may not be cited by any party.”
See also People v. Powell, 2012 IL App (1st) 102363, ¶ 14 n.3; Voris v. Voris, 2011 IL App
(1st) 103814, ¶ 17. However, a party can cite to such an order “to support contentions of
double jeopardy, res judicata, collateral estoppel or law of the case.” Ill. S. Ct. R. 23(e)(1)
(eff. July 1, 2011). According to the State, the unpublished order involves “nearly identical
facts” to those presented in the instant appeal, the same trial court judge, and the same trial
counsel who represented respondent there also represents the respondent here, in bolstering
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its argument that we consider the unpublished order’s analysis and conclusion. However, the
law of the case doctrine would bind us to the ruling where the same issue and identical
parties were before this court. See, e.g., People v. Young, 263 Ill. App. 3d 627, 633 (1994).
While the issue regarding the dispositional hearing presented in the appeals is the same, the
separate cases involve different respondents; thus, we are not bound by the ruling of the
unpublished order cited by the State.
¶ 77 Additionally, the State requests that we clarify our ruling concerning dispositional
hearings conducted under the Act as the bases for our decision “will lead to confusion
regarding the timing and scope of dispositional hearings within the [First] District.” In
support of its assertion, the State quotes from this court’s opinion finding that the “trial court
erred and did not comply with the language in the Act when it failed to hold an immediate
hearing or adjourn the proceedings.” Supra ¶ 74. Yet, the State overlooks the remainder of
the sentence to provide the full context of our finding that “[e]ven if the trial court
determined that a predisposition evaluation was unnecessary, the trial court erred and did not
comply with the language in the Act when it failed to hold an immediate hearing or adjourn
the proceedings to afford respondent the opportunity to present testimony to address the
factors outlined in section 40(b)(2) of the Act before the commitment order was entered.” Id.
Contrary to the State’s assertion, this finding does not force a trial court to order a
supplemental evaluation. As we previously stated, we interpret the relevant statutory
provision as granting a trial court discretion to proceed without ordering a preliminary
examination in framing its commitment order. Supra ¶ 73. Our finding relates to a
disposition hearing that does not afford the respondent the opportunity to present other
testimony or evidence regarding disposition, i.e., testimony or evidence in favor of
conditional release versus detention in a secure facility. Id.
¶ 78 Similarly, our finding does not aggravate the practical consequences of timely conducting
dispositional hearings, entering commitment orders, or scheduling subsequent examinations
to frustrate the purposes of the Act. Particularly, we disagree that our finding would create
“lengthy continuances” or undue delays. As most parties, namely, the State and respondents’
attorneys, will be familiar with the Act and proceedings thereunder, judicial economy and
the timely administration of justice can be met in the planning of witnesses in the event of
an immediate dispositional hearing following entry of judgment on the jury’s verdict.
Likewise, a trial court can adjourn the proceedings to conduct or schedule a dispositional
hearing to afford the respondent the opportunity to present and prepare any witnesses in an
expeditious manner and avoid undue delay in framing and entering the appropriate
commitment order. Notwithstanding the State’s implication, the two concepts are not
mutually exclusive.
¶ 79 CONCLUSION
¶ 80 In sum, we conclude that the challenged remarks by the prosecutor during closing
argument, including allegedly arguing testimony from expert witnesses as substantive
evidence in violation of Wilson v. Clark, 84 Ill. 2d 186 (1981), were proper and did not
violate orders in limine or improperly shift the burden of proof to respondent to warrant a
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new trial. Consequently, we also conclude that the trial court did not abuse its discretion in
denying respondent’s motion for a mistrial based upon the allegedly improper comments.
Further, we find that the State proved beyond a reasonable doubt that respondent was an SVP
as defined by the Act. However, we conclude, based upon our interpretation and construction
of the Act, that the trial court erred by not holding a hearing to afford respondent the
opportunity to introduce testimony and evidence as part of the dispositional phase.
Accordingly, we vacate the commitment order and remand the cause to the circuit court to
conduct a dispositional hearing allowing respondent to present evidence and testimony for
the trial judge’s consideration in framing its commitment order in accordance with section
40(b)(2) of the Act (725 ILCS 207/40(b)(2) (West 2010)).
¶ 81 Affirmed in part and vacated in part; cause remanded.
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