Appeal from the Circuit Court of Du Page County. No. 98--MR--823 Honorable Bonnie M. Wheaton, Judge, Presiding.
The opinion of the court was delivered by: Justice Geiger
Following a jury trial, the respondent, Raymond Trevino, was adjudicated to be a sexually violent person pursuant to the Sexually Violent Persons Commitment Act (the Commitment Act) (725 ILCS 207/1 et seq. (West 1998)). On appeal, the respondent argues that (1) section 30(c) of the Commitment Act is unconstitutional; (2) the Commitment Act violates his constitutional right to equal protection under the law; (3) the State failed to prove beyond a reasonable doubt that he was a sexually violent person; (4) he was denied a fair trial as a result of improper questioning and argument by the State; and (5) his commitment was unconstitutional because the jury did not specifically find that he lacked volitional control over his violent criminal behavior. We reverse and remand for further proceedings
The facts relevant to the instant appeal are as follows. On November 4, 1998, the State filed a petition requesting that the respondent be placed in the control, care, and custody of the Department of Human Services (DHS) pursuant to section 15 of the Commitment Act (725 ILCS 207/15 (West 1998)). The petition alleged that, in 1996, the respondent had been convicted of attempted criminal sexual assault (720 ILCS 5/8--4(a), 12--13(a)(1) (West 1996)) and sentenced to six years' imprisonment. The respondent was incarcerated at Taylorville Correctional Center and was scheduled for mandatory supervised release on November 6, 1998. The petition alleged that the respondent had been diagnosed according to the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (DSM-IV), as suffering from exhibitionism and personality disorder not otherwise specified and that these mental disorders created a substantial probability that the respondent would engage in acts of sexual violence. The petition was accompanied by the written mental health evaluation of Dr. Marc Levinson, a psychologist employed by the Department of Corrections (DOC).
On November 13, 1998, following a hearing, the trial court determined that there was probable cause to conduct further proceedings on the State's petition. See 725 ILCS 207/30 (West 1998). The trial court also ordered that the respondent be transferred to the DHS for an evaluation as to whether he was a sexually violent person. See 725 ILCS 207/30(c) (West 1998). At this time, the respondent's attorney indicated that the respondent would be exercising his right to remain silent pursuant to section 25(c)(2) of the Commitment Act (725 ILCS 207/25(c)(2) (West 1998)) and that he would not speak or cooperate with the State in its preparation for trial. The respondent's attorney also informed the trial court that the respondent would be filing a jury demand and requested the appointment of an independent mental health expert.
In response to this latter request, the State noted that section 30(c) of the Commitment Act prohibited the respondent from introducing any testimony of his own examining mental health expert in the event that he refused to cooperate with the court-ordered DHS evaluation. Section 30(c) of the Commitment Act provides, in relevant part, as follows:
"If the court determines after a hearing that there is probable cause to believe that the person named in the petition is a sexually violent person, the court shall order that the person be *** transferred within a reasonable time to an appropriate facility for an evaluation as to whether the person is a sexually violent person. If the person named in the petition refuses to speak to, communicate with, or otherwise fails to cooperate with the expert from the [DHS] who is conducting the evaluation, the person shall be prohibited from introducing testimony or evidence from any expert or professional person who is retained or court appointed to conduct an evaluation of the person." 725 ILCS 207/30(c) (West 1998).
The trial court did not rule upon the respondent's request for the appointment of an independent mental health expert at that time.
On January 15, 1999, the respondent filed a motion to declare section 30(c) of the Commitment Act unconstitutional. The respondent argued that the provision impermissibly interfered with his ability to call witnesses and violated his right to due process of law under the federal constitution (U.S. Const., amend. XIV). The respondent also argued that the Commitment Act violated the equal protection clauses of the federal and state constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, §2) because it afforded fewer rights than other civil commitment statutes.
Following a hearing, the trial court denied the respondent's motion and found that the statute was constitutional pursuant to the United States Supreme Court's decision in Kansas v. Hendricks, 531 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997). However, in so ruling, the trial court noted that section 30(c) of the Commitment Act did not preclude a non-cooperative respondent from calling an expert witness, but instead precluded the expert from testifying as to any interview or examination that the expert conducted upon the respondent. The trial court therefore granted the respondent's request that Dr. Lyle Rossiter be appointed to evaluate him using only the materials that were reviewed by Dr. Levinson and the information Dr. Levinson obtained during his interview with the respondent in the DOC. Subsequently, the State announced its intention to call Dr. Paul Heaton to testify as to his review of Dr. Rossiter's evaluation. The trial court ruled that Dr. Heaton could be called to testify, but only as a rebuttal witness for the State.
At trial, the State called Officer John Quirin of the Carol Stream police department to testify about the facts that led to the respondent's conviction of attempted criminal sexual assault. The State also called Dr. Levinson, who, as noted above, had interviewed the respondent prior to the probable cause hearing. Dr. Levinson diagnosed the respondent with exhibitionism and personality disorder not otherwise specified with features of antisocial, avoidant, and dependent traits. Dr. Levinson testified to the factual basis of his diagnosis and identified several factors suggesting that the respondent would commit future acts of sexual violence. He concluded that, because of the respondent's mental disorder, a substantial probability existed that the respondent would commit another sexually violent crime.
The respondent's expert witness, Dr. Lyle Rossiter, testified that he had reviewed the same materials as Dr. Levinson and that he had reviewed Dr. Levinson's report. Dr. Rossiter did not interview or examine the respondent. Although Dr. Rossiter agreed that the respondent suffered from exhibitionism and a personality disorder, he did not believe that the respondent was likely to engage in future acts of sexual violence.
The State's expert rebuttal witness, Dr. Paul Heaton, testified that he was an independent clinical psychologist who contracted with the DHS to evaluate individuals for possible detainment pursuant to the Commitment Act. Dr. Heaton testified that he disagreed with Dr. Rossiter's opinion and that he believed that the respondent's mental illness made it substantially likely that he would reoffend in a sexually violent manner.
The jury returned a verdict finding the respondent to be a sexually violent person. On May 24, 1999, following the denial of the respondent's posttrial motion, the trial court held a dispositional hearing. At the close of the hearing, the trial court found that the sexually violent persons unit at Sheridan Correctional Center was the least restrictive placement available for the respondent ...