WRIT OF ERROR to the Circuit Court of Winnebago County; the
Hon. ALBERT S. O'SULLIVAN, Judge, presiding.
MR. JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT:
The defendant, Dale Olmstead, was charged with the crime of indecent liberties in the circuit court of Winnebago County. Thereafter the State's Attorney filed in the same case a petition to adjudicate the defendant a sexually dangerous person pursuant to the Sexually Dangerous Persons Act. Ill. Rev. Stat. 1961, chap. 38, pars. 820.01 et seq.
The Sexually Dangerous Persons Act was originally enacted in 1938 and is now set out in the Code of Criminal Procedure. (Ill. Rev. Stat. 1963, chap. 38, pars. 105-1 to 105-12.) It provides that when a person is charged with an offense, the Attorney General or the State's Attorney may file a petition in the original criminal proceeding setting forth facts tending to show that the person charged is a sexually dangerous person. If upon a hearing, and after examination by two qualified psychiatrists, the accused is found to be a sexually dangerous person, he must be committed to the custody of the Director of Public Safety until recovered.
The act further provides that proceedings thereunder shall be civil in nature, and that the respondent shall have a right to demand a jury trial and to be represented by counsel.
Section 1 of the Act defines a sexually dangerous person as follows:
"All persons suffering from a mental disorder, which mental disorder has existed for a period of not less than one year, immediately prior to the filing of the petition hereinafter provided for, coupled with criminal propensities to the commission of sex offenses, and who have demonstrated propensities toward acts of sexual assault or acts of sexual molestation of children, are hereby declared sexually dangerous persons."
The defendant waived trial by jury on the petition and was represented by appointed counsel. After a hearing, the trial judge found defendant to be a sexually dangerous person and entered an order committing him to the custody of the Director of Public Safety pursuant to the act. Thereafter the defendant filed a petition for writ of habeas corpus and two petitions for writ of recovery, all of which were dismissed on motion of the State.
Defendant now appeals from the original order of commitment and from the order dismissing his first petition for writ of recovery alleging various deprivations of his constitutional rights. We will first consider the alleged errors on the hearing resulting in the original order of commitment. Defendant claims that he was not properly represented by counsel; that he was not properly advised prior to his waiver of his right to be proceeded against by grand jury indictment; that his confessions were improperly admitted; that his jury waiver was improperly accepted; and that the finding that he was a sexually dangerous person was contrary to the law and the evidence.
Defendant's claim that he was not properly represented by counsel is based upon the failure of appointed counsel to make opening or closing statements, the failure to object to hearsay testimony of a psychiatrist, and the failure to persist in objections to the admission of defendant's confession in evidence. He therefore claims that the utter incompetency of counsel amounted to no representation or reduced the trial to a farce under the rule of People v. De Simone, 9 Ill.2d 522.
We agree that although these proceedings are called civil in nature, they may result in a deprivation of liberty and a defendant must be accorded the essential protections available in a criminal trial. (People v. Capoldi, 10 Ill.2d 261.) We have therefore examined the record to determine the adequacy of defendant's representation.
At the outset it appears that trial counsel was selected by defendant's wife, and was appointed by the court when it was disclosed that his family was without funds. The record indicates that the attorney was well aware of the nature of the proceeding and of his client's rights. He explained his client's right to be indicted by a grand jury; he moved to quash the information and made a motion for a list of witnesses. When the State attempted to introduce defendant's confessions without calling one of the officers present, counsel objected. When he was informed that the officer was out of town and the case would have to be continued, he withdrew his objection. Since there is no suggestion that the confessions were involuntary, we do not consider counsel's concession a mark of incompetency, but rather a courtesy to the court in not requiring proof of an undisputed fact.
In the absence of any objection or assertion by defendant that the confessions were involuntary, it was unnecessary for the State to produce every material witness connected with the taking of the confessions. They were properly admitted in evidence.
One of the examining psychiatrists testified to substantially the same matters contained in his written report. We grant that his testimony contained hearsay statements. However, counsel had access to the written report, and we cannot say that an able lawyer desiring to protect his client's rights could not properly determine that justice could be best served by granting the psychiatrist considerable latitude in presenting his analysis of the defendant.
From the testimony of the psychiatrist, it appears that defendant's counsel suggested defendant be hospitalized "in an appropriate mental institution to receive treatment." Such a suggestion in defendant's case does not indicate incompetency, but on the contrary indicates a sincere desire to solve his client's problems short ...