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08/08/89 the People of the State of v. James P. Mcdonald

August 8, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE

v.

JAMES P. MCDONALD, RESPONDENT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

542 N.E.2d 1266, 186 Ill. App. 3d 1096, 134 Ill. Dec. 759 1989.IL.1214

Appeal from the Circuit Court of Franklin County; the Hon. Loren P. Lewis, Judge, presiding.

APPELLATE Judges:

JUSTICE HOWERTON delivered the opinion of the court. WELCH, P.J., and RARICK, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOWERTON

Respondent appeals and raises four issues. This court, however, need address only two: (1) whether respondent was proved to be sexually dangerous beyond a reasonable doubt; and (2) whether the report of Michael Althoff, Ph.D., a registered psychologist, should have been read to the jury.

The State concedes that it was error to introduce Dr. Althoff's report into evidence; he is a psychologist, not a psychiatrist, and the law requires examination and report from a psychiatrist, not a psychologist. (Ill. Rev. Stat. 1987, ch. 38, pars. 105-4, 105-4.01.) We, therefore, vacate the judgment of the circuit court of Franklin County and remand for a new trial.

Since we remand for a new trial without deciding whether respondent was proved to be sexually dangerous, we need to immediately address the exposure of respondent to double jeopardy.

This court holds that this case is civil, not criminal, and therefore,

This court holds that this case is civil, not criminal, and therefore, remanding this case for retrial without weighing the evidence to determine whether defendant was proved guilty beyond a reasonable doubt does not violate the provision against double jeopardy contained in the Illinois Constitution or the United States Constitution. Ill. Const. 1970, art. I, § 10; U.S. Const., amend. V. Our supreme court in People v. Taylor (1979), 76 Ill. 2d 289, 309, 391 N.E.2d 366, 375, held that an appellate court risks subjecting a defendant to double jeopardy when it reverses a criminal conviction and remands for new trial without deciding defendant's contention that the evidence at the first trial was insufficient to convict.

Double jeopardy does not apply to civil cases, however. The case at bar is civil, not criminal, and has been so designated by the legislature. (Ill. Rev. Stat. 1987, ch. 38, par. 105-3.01.) Treatment, not punishment, is the aim of the statute, making reasonable the legislative determination that the proceedings are civil. People v. Allen (1985), 107 Ill. 2d 91, 100-01, 481 N.E.2d 690, 695, aff'd (1986), 478 U.S. 364, 92 L. Ed. 2d 296, 106 S. Ct. 2988.

Proof beyond a reasonable doubt is the quantum of proof required to establish that respondent is sexually dangerous. (Ill. Rev. Stat. 1987, ch. 38, par. 105-3.01.) The threshold question, therefore, is whether the quantum of proof causes this case to be considered criminal, rather than civil, so that it falls within the holding of Taylor.

The legislature wisely chose proof beyond a reasonable doubt to establish one sexually dangerous because of the unique risks to liberty posed by the statute itself. Upon a finding that a person is sexually dangerous, the Director of Corrections is appointed guardian. The person is committed to custody until recovery and released only as provided by law. People v. Pembrock (1976), 62 Ill. 2d 317, 319-21, 342 N.E.2d 28, 29.

Civil cases ordinarily call for proof by a preponderance of the evidence or proof by clear and convincing evidence; civil cases ordinarily do not call for proof beyond a reasonable doubt. Nevertheless, requiring proof beyond a reasonable doubt does not transform this civil case into a criminal case, nor confer on respondent the rights of a criminal defendant. Although the standard of proof beyond a reasonable doubt must be used in sexually dangerous persons proceedings, this court does not believe that other elements of the criminal process, such as admonitions regarding a right to a jury trial, and to a right to appeal, for example, are constitutionally required. (People v. Pembrock (1974), 23 Ill. App. 3d 991, 995, 320 N.E.2d 470, 473, aff'd (1976), 62 Ill. 2d 317, 342 N.E.2d 28.) Proceedings under the sexually dangerous provision of the Code of Criminal Procedure of 1963 are not "criminal" within the meaning of the fifth amendment to the United States Constitution, nor does the due process clause of the fourteenth amendment to the United States Constitution independently require application of the privilege against self-incrimination. (Allen v. Illinois (1986), 478 U.S. 364, 375, 92 L. Ed. 2d 296, 308, 106 S. Ct. 2988, 2995.) The right to be secure from unreasonable search and seizure, privilege against self-incrimination, and double jeopardy are all concepts that grew out of the American colonial experience with tyrannical application of the criminal law and all are concepts uniquely associated with criminal ...


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