Appeal from the Circuit Court of Winnebago County, Seventeenth
Judicial Circuit; the Hon. ALBERT S. O'SULLIVAN, Judge,
presiding. Reversed and remanded.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.
James R. Sweeney, the defendant, was committed to the Director of the Department of Public Safety in 1961, as a sexually dangerous person. Thereafter, he filed a number of petitions for writ of recovery under the provisions of section 9 of the Sexually Dangerous Persons Act (Ill Rev Stats 1967, c 38, par 105-9). The last petition was filed in June of 1968, wherein he demanded a jury trial. The matter was heard before a jury; the defendant was represented by private counsel; and the jury returned a verdict finding that he had not recovered from being a sexually dangerous person. The defendant has appealed from the order entered on that verdict.
He contends that: (1), the expert opinion of one of the psychiatrists should not have been considered by the jury in that there were insufficient facts recited by the witness on which to base his opinion; (2), the Special Progress Report was hearsay and should not have been admitted in evidence; (3), the burden of proof should have been upon the State to prove beyond a reasonable doubt that the defendant had not recovered and the burden should not have been on the defendant to prove recovery by a preponderance of the evidence; (4), the State failed to meet this burden of proof; and (5), the instructions to the jury were incorrect and incomplete.
At the outset, it should be noted that the defendant demanded and had a jury trial, but did not file a post-trial motion. Section 3.01 of the Sexually Dangerous Persons Act (Ill Rev Stats 1967, c 38, par 105-3.01), provides that the proceedings under the Act are civil in nature, and that the provisions of the Civil Practice Act, including the provisions for appeal, and all rules adopted pursuant to the Civil Practice Act, "shall apply to all proceedings hereunder except as otherwise provided in this Act."
We think it appropriate to note that under section 68.1(2) of the Civil Practice Act (Ill Rev Stats 1967, c 110, par 68.1(2)), the failure to present a post-trial motion should preclude review. While our courts have been cautious to assure a defendant under these proceedings the same procedural safeguards as an accused in a criminal proceeding, we also have given more than lip service to the legislative mandate that the provisions of the Civil Practice Act are to apply, and that the manner of and limitations on review are those expressed in the Civil Practice Act. The People v. Capoldi, 37 Ill.2d 11, 16, 17, 225 N.E.2d 634 (1967); The People v. Fish, 36 Ill.2d 220, 223-225, incl., 221 N.E.2d 637 (1966); People v. Kennedy, 101 Ill. App.2d 91, 94, 242 N.E.2d 278 (1968).
At the time of Capoldi, supra, the Civil Practice Act provided that an appeal must be perfected by the filing of a notice of appeal within 60 days from the date of the judgment. The defendant had not filed the notice of appeal within the prescribed time. In rejecting the argument that to deny the right of appeal under the circumstances would be a denial of the same procedural safeguards available to an accused in a criminal trial, the court, at page 16, stated: "The difficulty with this argument is that we are not dealing here with a procedural safeguard, but with an express and studied legislative direction as to the manner of and limitations on review which we are not at liberty to ignore."
The rationale of Capoldi is compelling, particularly where the matter before the court is the petition for a writ of recovery as opposed to the original petition seeking to have the person declared a sexually dangerous person. However, since we are dealing with a case involving the question of the continued confinement of the defendant, and in view of the concern expressed by our courts in this type of case (e.g., The People v. Nastasio, 19 Ill.2d 524, 528, 168 N.E.2d 728 (1960); The People v. Capoldi, 10 Ill.2d 261, 267, 268, 139 N.E.2d 776 (1957); People v. Beshears, 65 Ill. App.2d 446, 458, 213 N.E.2d 55 (1965)), and because the State has not objected to a consideration of the appeal on the merits, we will, without establishing a precedent, review the contentions raised by the defendant on the merits. See: People v. Capoldi, 37 Ill.2d 11, at 15, 225 N.E.2d 634 (1967). Our conclusion to review the case on the merits is further indicated by the decision in The People v. Flynn, 8 Ill.2d 116, 133 N.E.2d 257 (1956). At page 120, the court stated:
"In the case at bar there is nothing to indicate that either the prosecutor or the court called on defendants to specify in writing the points on which they based their motion, and the State must therefore be held to have waived such requirement. . . . We conclude that since the State failed to object to the absence of a written motion it has waived any question as to its form and defendants are not precluded from assigning the present matters as errors."
Objection was made by the defendant to the opinion expressed by one of the psychiatrists, Dr. J.G. Graybill. The doctor testified as to his professional qualifications and background, and there were no objections with reference to his qualifications. He then testified that he examined the defendant on four different occasions twice in 1961 and twice in 1968; that in March of 1968 he did a clinical evaluation and psychological testing of the defendant; and that in November an additional clinical examination and evaluation was done. He was then asked his opinion as to whether the defendant was still a sexually dangerous person. There was no objection to this testimony and he answered in the affirmative.
The defendant may not permit evidence to be admitted at the trial without objection and urge error in the admission and consideration of such evidence for the first time on appeal. The People v. Sinclair, 27 Ill.2d 505, 508, 509, 190 N.E.2d 298 (1963); Illinois Bldg. Authority v. Dembinsky, 101 Ill. App.2d 59, 64, 242 N.E.2d 67 (1968). Further, it is obvious from the record that the opinion of the doctor was based upon facts and knowledge derived from his examination of the defendant, and his opinion was proper for consideration by the jury. The People v. Covey, 34 Ill.2d 195, 197, 198, 215 N.E.2d 220 (1966).
Objection was made by the defendant to the admission of the Special Progress Report from the Psychiatric Unit at Menard State Penitentiary as hearsay evidence. However, it is specifically required by statute that this sociopsychiatric report be prepared upon the filing of a petition for writ of recovery and be considered upon the hearing on the petition. Ill Rev Stats 1967, c 38, par 105-9; People v. Haywood, 96 Ill. App.2d 344, 345, 346, 239 N.E.2d 321 (1968). This statutory exception is but one of many exceptions to the hearsay rule. The report is prepared by the psychiatrist, sociologist, psychologist and warden assigned to the institution where the defendant is confined. Like most exceptions to the hearsay rule, this report has inherent guarantees of trustworthiness in both the number and professional character of the persons involved in making the report. The findings and opinions of these persons are important to the determination to be made in cases such as this. Expert assistance in the determination, particularly from those who have been in close contact with the defendant, is invaluable. It is apparent that the information obtained from these reports would be unavailable if these same persons were required to appear throughout the state and testify in all cases wherein a petition for writ of recovery hearing was held. This alone is a compelling reason for the admission of the report into evidence. See: Cleary, Handbook of Illinois Evidence, Second Edition, § 17.6. We find no error in admitting this report into evidence, as required by statute.
It is here urged by the defendant that the burden of proof in this case was upon the State and not upon him. However, it has been specifically held that where one has been adjudged sexually dangerous, the presumption obtains that this condition continues until evidence of recovery is adduced; and that the burden of proof shifts to the defendant in subsequent proceedings to prove by a preponderance of the evidence that he is no longer sexually dangerous. The People v. Fish, supra, 222; The People v. Couvion, 33 Ill.2d 408, 411, 211 N.E.2d 746 (1965). Also see: People ex rel. Drury v. Catholic Home Bureau, 34 Ill.2d 84, 95, 213 N.E.2d 507 (1966).
The defendant complains of error in the giving of certain instructions which he tendered. It is well settled that a party may not challenge on appeal the propriety of instructions tendered by him. People v. ...