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04/21/89 the People of the State of v. Jeffrey M. Israel

April 21, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JEFFREY M. ISRAEL, DEFENDANT-APPELLANT



Before addressing the arguments raised by defendant, we note that we have jurisdiction to hear this appeal pursuant to the recent decisions of People v. Wilk (1988), 124 Ill. 2d 93, and People v. Favelli (1988), 176 Ill. App. 3d 618. Those cases stand for the proposition that a defendant need not file a written motion to withdraw a guilty plea pursuant to Supreme Court Rule 604(d) (107 Ill. 2d R. 604(d)) as a condition precedent to an appeal from his sentence where the defendant presented a timely motion seeking reconsideration of his sentence. (Wilk, 124 Ill. 2d at 110; Favelli, 176 Ill. App. 3d at 622.) In the instant action, as in Wilk and Favelli, defendant is only appealing his sentence after having filed a motion to reconsider the sentence with the trial court. Defendant was therefore not required to file a motion to withdraw his guilty plea, and this court has jurisdiction to consider his appeal.

APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

537 N.E.2d 1124, 181 Ill. App. 3d 851, 130 Ill. Dec. 795 1989.IL.584

Appeal from the Circuit Court of Kendall County; the Hon. Wilson D. Burnell, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. DUNN and McLAREN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Defendant, Jeffrey M. Israel, appeals from consecutive sentences imposed after entering guilty pleas to aggravated kidnaping and aggravated criminal sexual assault. Defendant raises three issues on appeal: (1) whether the trial court erred in concluding that the emotional distress suffered by the victim constituted a "severe bodily injury" sufficient to warrant consecutive sentences; (2) whether the trial court erred in allowing a psychiatric mental health nurse to give her expert opinion on the risk defendant posed to the community where it was not established that the expert's method for calculating risk had gained general acceptance in her field; and (3) whether the trial court erred in allowing the prosecutor to read a victim impact statement prepared by the victim's family. We affirm.

On April 29, 1987, the Kendall County State's Attorney charged defendant with aggravated kidnaping and aggravated criminal sexual assault stemming from the abduction and sexual assault of an eight-year-old girl the day before. It was alleged that the aggravated kidnaping took place in Kendall County and the aggravated criminal sexual assault took place in La Salle County.

On May 5, 1987, defendant waived his right to a preliminary hearing and pleaded guilty to the charges. Defendant also waived his right to be prosecuted in La Salle County for the aggravated criminal sexual assault. The trial court admonished defendant regarding his rights, the nature of the charges, and the possible penalties he could receive, including the possibility that he could be required to serve his sentences consecutively. Defendant indicated that he understood his rights and that he had no expectation of receiving any particular sentence in exchange for his pleas.

As a factual basis for the pleas, the State averred that the victim was eight years old and lived in Yorkville, Illinois, at the time of the assault. On April 28, 1987, defendant forced the victim into his car as she was riding her bike near her home on her way home from school. Defendant taped her eyes and mouth closed and drove her to an unknown location where he had vaginal intercourse with her. Defendant then drove the victim to a motel parking lot where Kurt Salem, an off-duty police officer working as a security guard, took note of the car and recorded its license plate number. Defendant became alarmed when he saw Salem and drove the victim to a shopping center where he released her. The victim entered a restaurant and received aid. Salem subsequently gave the license plate number to the police, and defendant was arrested after Illinois State police traced the license plate number to his car. Defendant was informed of his Miranda rights and subsequently made a full confession. Defendant took investigators to the scene of the sexual assault, the Illini State Park in La Salle County, and identified various pieces of physical evidence found at that location. Defendant stipulated to the State's account of what the evidence would show, and the trial court entered judgment on the pleas.

On June 30, 1987, the trial court held a lengthy sentencing hearing. In aggravation, Illinois State police officer Mike Collins gave a detailed account of defendant's confession. According to Collins, defendant stated that he had planned seducing a very young girl two years prior to April 1987. Defendant chose Yorkville because it was a small, quiet town. On April 27, 1987, defendant was in Yorkville and noticed a girl riding her bike in a secluded area. Defendant decided that if the circumstances were the same on the following day, he would carry out his plan. Defendant prepared for the offense by placing stolen license plates on his car and covering various identification marks and stickers with tape. Defendant also secured the passenger side door handle so that the car could not be opened from the inside. On April 28, 1987, defendant returned to the secluded area where he had observed the girl the day before. When defendant saw the victim approaching, he blocked her path and forced her into the car as she attempted to pass him. Defendant transported the victim to La Salle County, stopping only briefly to tape her eyes and hands and place her on the floor. He then proceeded to the Illini State Park, where he took the victim from the car, removed her clothes below the waist, put her on a towel, and had vaginal intercourse with her. Defendant stated that he slapped the victim once when she screamed.

After the sexual assault, defendant placed a napkin in the victim's crotch when he noticed that she was bleeding from the vagina. Defendant allowed the victim to get dressed but did not allow her to put on her underpants. Defendant removed the tape and stolen plates from his car and left the area. At some point, defendant offered to "hogtie" the victim to a tree and leave her. When defendant saw that his comment alarmed the victim, he told her that he planned to take her home. Defendant continued driving and stopped on several occasions, first to allow the victim to go to the bathroom, and later at a fast-food restaurant where he bought her something to drink. Defendant removed the tape from the victim's eyes and transported her to Morris, Illinois. Defendant stated that he was searching for the Morris Hospital but could not find it. Defendant subsequently parked in a motel parking lot but became nervous when he saw someone wearing handcuffs on his belt. Defendant then drove to another fast-food restaurant where he released the victim and told her to tell the people in the restaurant what had occurred. Defendant stated that the victim was afraid to walk into the restaurant alone, so he accompanied her about three-quarters of the way. The victim subsequently walked into the restaurant, and defendant returned to his car and drove to his home in Joliet.

Illinois State police sergeant Jack Townsend testified that he executed search warrants for defendant's apartment and car. Townsend identified the State's exhibits Nos. 12 through 50 and 55 through 75 as photographs depicting defendant's car and apartment and their contents, including pornographic material and sexual aid devices. Townsend stated that no weapons were found in either location.

The State next presented the testimony of Dr. Ann Burgess, a professor of psychiatric mental health nursing at the University of Pennsylvania. Dr. Burgess testified that she had a doctorate degree in psychiatric mental health nursing and had participated as both a student and an instructor in course work and seminars relating to sexual offenders and their victims. Dr. Burgess also noted that she was involved with several studies in related areas and had published several books, monographs, and articles based on her research. Dr. Burgess testified that she was hired by the State in this case to give her opinion regarding the impact of the offenses on the victim and the risk defendant posed to the community. Dr. Burgess stated that she had previously rendered expert opinions approximately 24 to 36 times in courts of 12 States. Approximately 90% of those cases involved testimony regarding victim impact. Dr. Burgess stated that she testified two or three times regarding the risk an offender posed to the community.

Dr. Burgess was cross-examined on her qualifications, particularly as to her ability to render an opinion on the risk defendant posed to the community. Dr. Burgess testified that she evaluated the risk an offender posed to the community using five criteria: (1) commitment to deviate behavior; (2) planned crime sequence; (3) preoccupation with sexually deviate behavior; (4) prior family and social response; and (5) escalation of deviate behavior. Dr. Burgess stated that these criteria were derived over the years by her colleagues and herself. Dr. Burgess testified that she rated an offender on a scale of 1 to 10 in each criterion, with 10 being the highest risk. She then totaled the ratings to determine the risk the offender posed to the community. In evaluating defendant, Dr. Burgess stated that she reviewed the police reports, photographs, defendant's psychiatric and employment records, and the victim's hospital records. Dr. Burgess stated that she did not interview defendant.

Defendant accepted Dr. Burgess on her qualifications to testify regarding victim impact, but objected to Dr. Burgess testifying as an expert on the risk defendant posed to the community. The court then asked Dr. Burgess to identify studies she had done regarding the risk an offender poses to the community. Dr. Burgess stated that she participated in studies of 36 serial murderers, 41 serial rapists, juveniles who have raped and murdered, and an on-going study of child abductors. Dr. Burgess stated that the results of those studies had been published in the American Journal of Psychiatry, the Journal of Inter-personal Violence, and Behavior Science and the Law. The court then asked Dr. Burgess whether her results had been accepted by experts who were authorities in the treatment and diagnosis of psychiatric disorders. Dr. Burgess responded by reiterating that the results of her studies were published and that the serial homicide study was cited in an article published in an unidentified journal. Although noting that Dr. Burgess' qualifications were limited, the court concluded that they were sufficient to give an opinion at the sentencing hearing.

Dr. Burgess then explained how she rated defendant on each of the five criteria and what facts she considered relevant under each. Dr. Burgess testified that defendant received an overall rating of 45 out of a possible 50 points, thus classifying him as a "severe risk." In the course of discussing her ratings of defendant, Dr. Burgess characterized him as a pedophile and sexual sadist. Dr. Burgess concluded that the rehabilitative outlook for defendant was "guarded . . . given the state of expertise and treatment of this type of deviation."

On cross-examination, Dr. Burgess was confronted with defendant's group exhibit No. 1, a report entitled "The Treatment of Child Molesters." Dr. Burgess indicated that she was familiar with the report, but stated that it did not evaluate "aggressive" pedophiles such as defendant and did ...


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