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06/30/97 PEOPLE STATE ILLINOIS v. JOHN CROSS

June 30, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHN CROSS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Joseph J. Urso, Judge Presiding.

The Honorable Justice Burke delivered the opinion of the court. Hartman and DiVITO, JJ., concur.

The opinion of the court was delivered by: Burke

The Honorable Justice BURKE delivered the opinion of the court:

In 1982, after a jury trial, defendant John Cross, also known as John Binford, was found not guilty by reason of insanity of the murder of two women, the assault and attempted murder of a man, and the assault and attempted murder of another woman in her home. Defendant was charged with two counts of murder, one count of attempted murder, and one count of home invasion. Defendant was remanded to the custody of the Department of Mental Health and Developmental Disabilities (DMHDD) and given a Thiem *fn1 date of natural life. The circuit court subsequently denied supervised off-grounds passes for defendant from the Elgin Mental Health Center (Elgin) where defendant is currently being treated. *fn2 On appeal, defendant contends that (1) the trial court erred in denying him supervised off-grounds passes because its decision was against the manifest weight of the evidence, and (2) was inconsistent with defendant's continued progress and treatment. For the reasons set forth below, we remand for a new hearing on whether defendant should be granted supervised off-grounds pass privileges.

In 1975, defendant was incarcerated for four and one-half years for armed robbery. While in prison, defendant had a vision of his grandmother, who told him "to go down south" and protect her because defendant's aunt was trying to harm her. In 1981, defendant's grandmother died, and at the funeral on June 12, 1981, defendant's "vision" reemerged. Defendant believed that his grandmother had been killed by his aunt, and that same day, he ingested cocaine, LSD, and alcohol, and was hearing voices of God telling him to complete his mission. Also on the same day, while driving to Alabama to kill his aunt, defendant realized that he had no money to buy gasoline. Defendant pulled into a car wash and saw a man sitting in his car. Defendant approached the man and asked the man to lend him his car so defendant could do the job of Jesus Christ, stating that he had a mission for God to kill "witches and warlords [warlocks]." Defendant also asked the man to point out two sinners, and the man pointed to two girls. Defendant then shot and killed the two girls and shot and wounded the man.

Defendant then ran past a yard and saw a garage where a boy was waving at him. He followed the boy into the boy's house and picked up a kitchen knife and stabbed the boy's mother. The woman's husband came to help, and hit defendant several times with a pipe wrench. When the police arrived, they took defendant to the hospital. Defendant was subsequently charged with two counts of murder, attempted murder, and home invasion. After a jury trial, he was found not guilty by reason of insanity, and was committed to the DMHDD for treatment.

On October 26, 1995, the facility director of the Elgin, Illinois Mental Health Center sent a letter to the circuit court, and attached a "treatment report" from the Center's Forensic Treatment Program, seeking court approval pursuant to section "1005--2--4(b) of the Criminal Code" for unsupervised on-grounds and supervised off-grounds pass privileges for defendant. The report was dated September 28, 1995, and detailed some of defendant's treatment history. The report stated that on September 27, 1982, defendant was sent to Elgin and, for the first nine years of his treatment, he expressed anger and depression at his commitment imposed pursuant to the Thiem date of natural life because it was an "overly harsh" and "unfair" ruling by the court. On March 20, 1983, defendant "eloped" from Elgin, and went to his mother's home. On March 22, after being gone for two days, defendant voluntarily returned to Elgin, and was subsequently transferred to a more secure location at the Chester Mental Health Facility. In 1986, and again in 1989, defendant contemplated suicide. Prior to 1991, defendant refused to follow treatment regimes, experienced episodal agitation, exhibited difficulty accepting authority, and exhibited a lack of discretion in social situations.

The report further indicated that defendant began to show significant changes after May 1990. Defendant responded to psychological treatment by examining factors contributing to his "maladaptive means of coping." He also showed improvement in utilizing "constructive means of diverting his anger into a more constructive form of energy," became more invested in programming aspects of treatment, became cooperative and pleasant, was taking his medication willingly, attended and graduated from many treatment groups, maintained his sobriety from alcohol and drugs, and participated in vocational training in janitorial services.

According to the report, however, in 1994 and 1995 defendant experienced some difficulties. In 1994, defendant had been transferred to the William White Unit, a co-ed residential unit, and became emotionally and sexually involved with a female patient. The female patient became pregnant and eventually gave birth to twins. Defendant and the female patient were both transferred back to their respective home units due to a violation of hospital policy, and defendant's mother currently has custody of his children. In January 1995, defendant struck another patient. Defendant had been continuously provoked by this patient and struck him and cut his lip. Defendant later apologized for the incident. Additionally, in May 1995, defendant was agitated and challenging toward a male staff member, and subsequently expressed regrets about this incident to his therapist.

The report, written by Sylvia S. Sun, M.S., Staff Psychologist, and Fe Velasco, M.D., Clinical Psychiatrist, recommended passes for defendant and concluded that defendant was "NOT considered dangerous to his or other's safety" and "[was] not considered a risk for elopement of [sic] violence." The report recommended the supervised off-grounds passes for the following purposes:

"The Supervised Off-Grounds Passes will initially be used for the purpose of interviews and evaluations of Mr. Cross at the Isaac Ray Center. Subsequently to this, the Supervised Off-Grounds Pass privileges will be used to attend leisure awareness groups utilizing community resources, to visit placement facilities and/or outpatient mental health centers under the supervision of a staff member. In order to link Mr. Cross to Isaac Ray Center, Supervised Off-Grounds passes are requested."

The DMHDD facility director also recommended the unsupervised on-grounds and supervised off-grounds pass privileges for defendant in its October 26, 1995 letter.

On January 25, 1996, at a hearing on whether defendant should be granted pass privileges, the State and defendant's attorneys disagreed as to which party bore the burden of proving by clear and convincing evidence that defendant should or should not be granted pass privileges. Defendant argued that the State was required to show by clear and convincing evidence that defendant should not be granted pass privileges. Defendant also argued that treatment at the Isaac Ray facility was "absolutely necessary in evaluating *** [his] progress for rehabilitation and reintegration into the community and in using these passes *** [he] would be accompanied by a staff member of the Elgin Mental Health Center at all times."

In response, the State argued:

"[MR. BILYK, Assistant State's Attorney]: Briefly, first of all, the statute, Section 730 Illinois Compiled Statutes, 5/5--2.4, states that the finding of the Court shall be established by clear and convincing evidence, the burden of proof or the burden of going forth with the evidence rests with the State when a hearing is held to review the determination of the facility director that the defendant should be transferred to a nonsecure setting, discharged or conditionally released.

The burden of proof and the burden of going forward with the evidence rests on the defendant when a hearing is held to review a petition filed by or on behalf of such defendant.

***

And I believe there is some question as to who actually has the burden of proof and the burden of going forward as it is the recommendation of the facility, but a determination as to transfer to a nonsecure setting is not really the request here ***.

***

*** I think it's a request by the defendant with a recommendation from the doctors at the facility, a petition by the defendant. These are the defendant's attorneys, not the department of mental health attorneys. And we are not reviewing a determination by the facility director, we are actually having a hearing that can--what it is, Judge, whoever has the burden of proof.

I am arguing certainly that the defendant has the burden of going forward and the burden of proof and that being as it may, whoever has the burden of proof I believe the evidence will show that the defendant is and still remains to be a risk and needs to be further in the department of mental health without incident before unsupervised on grounds passes or supervised off grounds passes should be allowed."

The court subsequently stated:

" *** You may proceed, Mr. State's Attorney. The Court is taking the position it is your burden since this is--you are taking a position contrary to the recommendation of the Illinois Department of Mental Health."

The State then called Dr. Fe Velasco as a witness. Velasco stated that she was employed as a forensic psychiatrist at the Elgin Mental Health Center, and that defendant had been her patient since August 1995. She also stated that she saw defendant two to three times a month regarding formal evaluations for medication, once a month for ...


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