People v. Trainor , 337 Ill. App. 3d 788 ( 2003 )

PRESIDING JUSTICE McDADE,

concurring in part, dissenting in part and concurring with the special concurrence:

The majority find (1) that the State’s evidence was sufficient to prove beyond a reasonable doubt that respondent was still sexually dangerous, rejecting his claims that (a) the statute requires a licensed psychologist and (b) that the signing of the sociopsychiatric report by a licensed social worker does not substitute for the input of the statutorily designated sociologist; and (2) that the court did not err in instructing the jury on the effect of signing verdict form C.

I concur with the second finding, but agree with Justice Holdridge that, although the court’s response was completely proper and accurate, the language of the statute itself is misleading. I share his hope that it will be addressed.

I respectfully dissent from the first finding, however, because of my belief that the State’s threshold obligation in a recovery proceeding — the sociopsychiatric report — has not been met because I do not think Dr. Mark Carich satisfies the statutory requirement that treatment be accorded and the respondent be assessed in the report by a “psychologist.” More specifically, I agree that the statute does not require that the psychologist be licensed, but I do think it requires him to be a psychologist.

The Sexually Dangerous Persons Act (Act) (725 ILCS 205/1.01 et seq. (West 2000)) does not contain an explicit statement of purpose. The courts have, however, determined and described the legislative purpose. The most recent statement of that purpose by the Illinois Supreme Court is found in People v. Trainor, 196 Ill. 2d 318, 752 N.E.2d 1055 (2001).

“The Act’s purpose is twofold: (1) to protect the public by sequestering a sexually dangerous person until such a time as the individual is recovered and released, and (2) to subject sexually dangerous persons to treatment such that the individual may recover from the propensity to commit sexual offenses and be rehabilitated.” Trainor, 196 Ill. 2d at 323-24, 752 N.E.2d at 1058-59.

Sexually dangerous persons are statutorily defined as having a “mental disorder” coupled with criminal propensities to commit sex offenses and demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children. 725 ILCS 205/1.01 (West 2000). The determination of sexual dangerousness for purposes of commitment requires an examination and evaluation by a “qualified psychiatrist” as defined in section 4.01 (725 ILCS 205/4.01 (West 2000)) and a jury finding beyond a reasonable doubt.

The Trainor court noted that the 1963 amendments to the Act included a provision quashing all outstanding indictments that served as the basis for the civil commitment proceeding. The court observed that the amendment “altered the aim of the Act because it focused on the rehabilitative treatment of the offender rather than punishment,” and noted that “under the Act, the State had a statutory obligation to provide care and treatment for persons adjudged sexually dangerous. This care is designed to effect recovery in a facility set aside to provide psychiatric care.” Trainor, 196 Ill. 2d at 324-25, 752 N.E.2d at 1059, citing People v. Cooper, 132 Ill. 2d 347, 547 N.E.2d 449 (1989); Allen v. Illinois, 478 U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct. 2988 (1986).

I believe we must consider the issues raised by Trainor in the context of this statutory purpose and with the obligation of strict construction and application of the statute. People v. Bruckman, 33 Ill. 2d 150, 210 N.E.2d 537 (1965); People v. Johnson, 322 Ill. App. 3d 117, 749 N.E.2d 402 (2001).

Although the recovery proceeding has previously been treated as qualitatively different from the initial determination and carrying a lower standard, our supreme court held in Trainor that in this proceeding as well, the State continues to bear the burden of proving beyond a reasonable doubt that the applicant is still sexually dangerous, expressly abrogating 10 published appellate court decisions in holding to the contrary.

The threshold requirement for the State in meeting that burden is a sociopsychiatric report responding to the applicant’s representation in his application showing recovery that he has recovered from the mental disorder which resulted in his original commitment. The statute tells us that the report “shall be prepared by the psychiatrist, sociologist, psychologist and warden of, or assigned to, the institution wherein such applicant is confined.” (Emphasis added.) 725 ILCS 205/9 (West 2000).

Ignoring our obligation to strictly construe and apply the statute, the majority find not only that it does not require a licensed psychologist but also decides that the legislature did not really mean that it wanted a real psychologist to work with and evaluate these patients and participate in the preparation of the report — a person with a bachelor’s degree in psychology and a master’s and doctorate in educational counseling, not in psychology, would be just fine. I think this holding, when we give “psychologist” its usual and customary meaning, is contrary to the plain language of the statute and severely undercuts the legislative purpose and the weight of the report in sustaining the State’s burden of proof. I wonder if any of us on this panel, being diagnosed with a mental disorder and confined until we have recovered, would be content to be treated and evaluated by a school or family counselor. Or would want the trial court to rely on a report based on the assessments of a person who does not possess the qualifications called for in the statute. Carich is not and has never been a “psychologist” and has never had his psychological competence tested. I would find that he does not satisfy the plain language of the statute and that he is not trained or demonstrably competent to perform the evaluations and draw the conclusions called for in the sociopsychiatric report.

The majority also reject respondent’s claim that the report was not signed by the statutorily required sociologist. See 725 ILCS 205/9 (West 2000). They find no error because the report was signed by a social worker, but they advance no reason for their apparent conclusion that there is no difference between the skills, functions, and training of sociologists and social workers.

My quarrel in this case is not with the jury’s opinion that respondent remains sexually dangerous but is rather with the adequacy and legal sufficiency of the evidence from which that opinion is derived. Because of what I believe to be significant concerns about the qualifications of Dr. Carich to provide the treatment and make the assessments called for in the statute and because I see no reason for deciding that the legislature did not intend for services to be provided and the report to be signed by the sociologist it specified, I would remand this matter for further proceedings to address these issues. Moreover, because of the question posed by the jury about the consequences of signing verdict C, I cannot conclude with any degree of comfort that, even with the challenged evidence, the outcome was as unassailable as the majority would suggest.

For these reasons, I would find that the State has not met its burden of proving beyond a reasonable doubt that respondent remains sexually dangerous and would reverse the order below and remand the matter for a proper resolution of the issues raised and for a new trial. I, therefore, dissent.