APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN S. GHENT, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:
Defendant, Richard Studdard, appeals from a judgment of the Circuit Court of Winnebago County entered on a jury verdict finding him to be a sexually dangerous person.
In 1962, the State filed a petition against the defendant pursuant to the Illinois Sexually Dangerous Persons Act (Ill. Rev. Stat. 1961, ch. 38, par. 820.01 et seq.) in the Circuit Court of Winnebago County. After a bench trial, the court found defendant to be a sexually dangerous person by a preponderance of the evidence and entered an order remanding him to custody. Defendant remained in custody until he was conditionally released in 1968. This release was revoked in 1970. Respondent remained in custody until 1976 when United States ex rel. Morgan v. Sielaff (N.D. Ill. 1976), 76 C-1732, aff'd (7th Cir. 1976), 546 F.2d 218, held that the requirement of proof beyond a reasonable doubt in sexually dangerous persons proceedings, recognized in People v. Pembrock (1976), 62 Ill.2d 317, 342 N.E.2d 28, and United States ex rel. Stachulak v. Coughlin (7th Cir. 1975), 520 F.2d 931, cert. denied (1976), 424 U.S. 947, 47 L.Ed.2d 354, 96 S.Ct. 1419, was to be applied retroactively. Persons then in custody as sexually dangerous persons including the defendant who had been committed upon an improper standard were ordered released or retried. The State elected to retry the defendant.
Because some of the events surrounding defendant's 1962 trial remain in issue in this appeal, they must be briefly set forth. In 1962 defendant was charged in two separate indictments with (1) burglary with intent to commit rape and with attempted rape, and (2) burglary with intent to commit deviate sexual assault and with indecent liberties with a child. Subsequent to pleas of not guilty, defendant petitioned for appointment of two psychiatrists to examine him pursuant to section 2 of "An Act to provide for * * * a psychiatric examination of persons charged with sexual acts against children" (Ill. Rev. Stat. 1961, ch. 38, par. 825(g), now Ill. Rev. Stat. 1977, ch. 23, par. 2402 (sexual crimes against children)). Drs. J.G. Graybill and H.J. Drell were appointed and filed their findings with the court. Immediately after these findings were filed, the State filed its petition to have defendant declared a sexually dangerous person. The petition alleged the offenses contained in the two indictments and asked for the appointment of two psychiatrists to examine the defendant. Apparently, however, no further examinations took place nor were any further reports filed. After a hearing, defendant was found to be a sexually dangerous person.
The proceedings resulting in the judgment now on appeal began on February 3, 1977. Defendant's motion to set bail was granted and he was released on $50,000 bond. The State's motion to have defendant examined by psychiatrists was granted and Drs. Hamann and Graybill were appointed. No new petition was filed against the defendant; the State instead indicated it was proceeding on the 1962 petition. A number of pretrial motions were then filed including a motion to suppress identification, a motion to suppress statements, and discovery motions.
The State resisted defendant's request for production of all psychiatric reports. The position of the State was that any evidence relating to events subsequent to 1962 would be irrelevant. The trial court agreed and ruled that only reports which referred to events prior to June 1, 1962, had to be turned over to the defendant. The court also ruled that the State would be required to confine its proofs to the allegatons in the original petition.
In March of 1977, the trial court heard defendant's motion to suppress. Glenn Kunz, who in 1962 was a Rockford police detective, testified that two eyewitnesses had viewed the defendant through a one-way mirror on January 5, 1962. The defendant testified that on this date he had blood on his clothing. Defense counsel also made an offer of proof in support of stricken paragraphs of the motion. Defense counsel stated that defendant would testify that he was in blood-stained, tattered clothing on January 5. He stood before the one-way mirror with two police officers. The officers were larger, heavier and taller than the defendant, and they were clean and well-dressed. It was further offered that one witness D.M. would testify that she was unable to make a positive identification of the defendant from a photographic display on January 5 or 6. Defendant's motion to suppress was denied. Certain paragraphs of an amended motion were struck on the basis that the law in 1962 which was found controlling did not require suppression of an in-court identification because of a suggestive pretrial identification procedure.
On the date set for trial, May 18, 1977, the State's motion in limine was granted preventing the introduction of any evidence of events occurring after the committing order in 1962.
At trial, D.M. testified that she was age 10 in 1962 and on January 4, she was in St. Anthony's Hospital. She stated that a man entered her room and told her he was taking the regular doctor's place. He then pulled down her pajama bottoms and put his hand and mouth on her vagina before she pushed him away. She identified the man as the defendant; however, on cross-examination she testified that she was unable to positively identify the man on January 5.
S.M.A. testified that she was 14 on January 4, 1962. She was then a resident of the Rockford Children's Home and was awakened by a man who lay down on her bed and attempted unsuccessfully to pull down her pajama bottoms. She reported this incident to a counselor. Although she stated the light was dim during the incident, she identified the defendant as the man who entered her room. Also testifying was J.B., who was a 16-year-old resident of the Home in 1962. She testified that she was awakened by the defendant who then took off her pajama bottoms, unzipped his pants, and got on top of her for four or five minutes.
Several witnesses, who were Rockford police officers in 1962, testified concerning the apprehension and questioning of defendant in January 1962.
The only expert witness for the State was Dr. Graybill. He testified that he examined the defendant in the county jail in May of 1962 pursuant to court order. Over objection he stated that the defendant told him he had previously been convicted of rape. He further testified that the defendant denied involvement in the charged crimes stating instead that he could remember nothing of the alleged incidents. The doctor stated that it was his professional opinion that in 1962 the defendant was mentally ill and a sexually dangerous person as defined by the statute. Based on the 1952 rape conviction, Dr. Graybill expressed the opinion that this disorder had persisted at least 10 years prior to 1962. Defense counsel moved to strike this testimony on a number of grounds, including incompetency to testify as to the 1952 conviction, and the fact that the examination took place prior to filing of the petition. The trial court overruled these objections.
The only defense witness was Ruth Gloe who had been a Rockford policewoman in 1962. She testified that police reports reflecting an investigation she conducted in 1962 indicate that D.M. was unable to give a positive identification of a photo of the defendant as the man in her room because the room had been quite dark.
The jury found that the defendant had been a sexually dangerous person within the meaning of the Act. The post-trial motions of the defendant were denied, and a commitment order was entered. Defendant appeals.
Defendant raises seven issues on appeal: (1) whether the trial court properly relied upon the respondent's mental condition at the time the original petition for his adjudication as a sexually dangerous person was filed in determining whether the respondent was a sexually dangerous person, (2) whether the procedures below substantially complied with the requirements of the Sexually Dangerous Persons Act, (3) whether the respondent was denied a fair trial by the trial court's refusal to consider whether the identification of the respondent should be suppressed because of allegedly suggestive procedures employed by the police in 1962, (4) whether the trial court acted properly in denying the respondent's motion to strike the testimony of Dr. Graybill, (5) whether the trial court erred in admitting testimony regarding a prior conviction, (6) whether the existence of the respondent's mental disorder for a period of more than one year prior to the filing ...