Appeal from the Circuit Court of De Kalb County. No. 98--MR--004 Honorable John W. Countryman, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Hutchinson
Following a jury trial, respondent, Terry Hayes, was found to be a sexually violent person. The trial court subsequently found that respondent was not appropriate for conditional release and ordered him committed to a secure facility. The commitment order contained a number of directives for the Department of Human Services (the Department) regarding respondent's treatment. In No. 2--00--0392, respondent appeals, contending (1) that the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 1998)) is unconstitutional; and (2) the State failed to prove beyond a reasonable doubt that he is a sexually violent person. Respondent does not contend that the trial court erred when it ordered him committed to a secure facility. In No. 2--00--0339, the Department appeals, contending (1) the trial court lacked authority to order the Department to retain a private physician or subject the Department to that physician's supervision; (2) the doctrine of sovereign immunity barred the order as an action against the State; (3) constitutional separation of powers precluded a court order directing the manner in which the Department performed executive functions; and (4) the trial court lacked jurisdiction over the Department. On respondent's motion we have consolidated these two appeals. In No. 2--00--0392 we affirm. In No. 2--00--0339 we affirm in part, vacate in part, and remand. In accordance with the criteria of Supreme Court Rule 23(a) (166 Ill. 2d R. 23(a)) we have elected not to publish those portions of this opinion relevant to respondent's challenge to the sufficiency of the evidence.
On January 13, 1998, the State filed a petition alleging that respondent was a sexually violent person. On January 15, 1998, the trial court found that probable cause existed that respondent was a sexually violent person, ordered the Department to detain him, and set the matter for a jury trial. The matter was continued several times for reasons unrelated to this appeal.
On February 22, 1999, the trial court commenced a jury trial on the State's petition.
[The following material is nonpublishable under Supreme Court Rule 23.]
Dennis Doren, a psychologist, testified that he is the administrator of the Mendota Mental Health Institute in Madison, Wisconsin. Doren is licensed by the State of Wisconsin, is a member of the American Psychological Association, and is a clinical member of the Association for Treatment of Sexual Abusers. Doren examined respondent in June 1998. Prior to examining respondent, Doren reviewed his records from the Department of Corrections including 18 mental health evaluations. Doren also reviewed transcripts of respondent's criminal trial.
Doren interviewed respondent about his "social history," respondent's family, educational, employment and criminal background. Doren also interviewed respondent about his sexual history. Doren evaluated respondent using several diagnostic tools including, the Rapid Risk Assessment for Sex Offender Recidivism (the RASOR), Minnesota Sex Offender Screening Tool (the Minnesota Scale), and Violence Risk Appraisal Guide (the VRAG).
Doren diagnosed respondent with pedophilia, a sexual attraction to minor children. Doren based his diagnosis, in part, on a report indicating respondent had engaged in forced oral and anal intercourse with a ten-year-old boy on between 15 and 100 occasions during a two- year period. Doren also diagnosed respondent with the disorder of sexual sadism, a condition in which an individual is sexually aroused by the infliction of physical pain or psychological humiliation to someone who does not consent. Doren based the sexual sadism diagnosis on reports that respondent forced anal intercourse on his victim and then forced oral intercourse. The reports also alleged that respondent, on one occasion, defecated on his victim's face. It was also reported that respondent struck his victim with his hand even though force was not required to subdue his victim. Finally, respondent watched while a second perpetrator assaulted his usual male victim, raped a female victim with his male victim watching, and assaulted his male victim while the female victim watched. Doren identified additional "softer signs," such as threats of harm, that supported a sexual sadism diagnosis. Doren further diagnosed respondent with personality disorder, not otherwise specified, antisocial and borderline features. Doren also diagnosed respondent with alcohol abuse.
Doren testified that respondent's RASOR score indicated a high likelihood of reoffense. Respondent's Minnesota Scale rating indicated a high likelihood of reoffense. Doren testified that he scored defendant at a moderately high to high level on VRAG. Doren testified that the VRAG was statistically useful for predicting sexual offense attacks but was designed as a tool for assessing the risk of violence against people generally. Doren concluded that respondent represented a substantial probability for recommitting a sexually violent offense in the future.
On cross-examination, Doren testified that he most often testifies on behalf of the State in commitment proceedings and was being paid for his testimony by the State. Doren also testified that the records he reviewed did not indicate any criminal acts committed by respondent after 1990. Doren admitted that respondent denied committing the acts upon which Doren based his sexual sadism diagnosis. Doren also admitted that he based his diagnosis on police reports and trial transcripts but did not interview the victims directly.
Gerald Burgener, a psychologist employed by the Department of Corrections, testified that he was a clinical member of the Association for the Treatment of Sex Abusers. In 1997 Burgener reviewed respondent's Department of Corrections records and used the Minnesota Scale to evaluate the risk that respondent would commit another act of sexual violence. Burgener scored respondent relatively high on the Minnesota Scale and determined that a more extensive evaluation was required.
Burgener interviewed respondent on October 14, 1997. Following the interview, Burgener diagnosed respondent with pedophilia and antisocial personality disorder. Burgener identified the bases for his diagnosis including defendant's sexual conduct with minors, deceitfulness, a lack of remorse, impulsivity, and a reckless disregard for the safety of self and others. Burgener opined that it was substantially probable that respondent would commit future acts of sexual violence. Burgener explained that respondent was likely to commit further acts of sexual violence because he had been sexually abused as a child and had not received adequate emotional support. Burgener further explained that respondent's impulsive behavior made future offenses more likely and respondent's history of drug and alcohol abuse was a complicating factor that made future offenses even more likely. Respondent had been given the opportunity to obtain sex offender counseling while in the Department of Corrections, but did not do so.
On cross-examination, Burgener testified that the general recidivism rate among individuals returning to the Department of Corrections was 35%. Burgener testified that he learned respondent had attended sex offender counseling at the Ben Gordon Treatment Center before being incarcerated, but admitted that he did not review the records of that treatment. Burgener admitted that during the interview respondent denied sexually assaulting either the ten-year-old victim or the five-year-old victim. Burgener testified that his diagnosis did not include sexual sadism. However, Burgener further testified that if he had reviewed the same documents as Doren, he would have reached the same diagnosis.
On further cross-examination, Burgener admitted that the mental health records he reviewed contained neither a diagnosis of pedophilia or sexual sadism. Burgener testified that the records included only a diagnosis of Dysthymia, a mood disorder related to depression. Burgener admitted that depression was not a congenital or acquired condition that would predispose a person to sexual violence. Burgener testified that the records also contained a diagnosis of substance abuse. Burgener admitted that substance abuse does not predispose a person to sexual violence but testified that it is a complicating factor.
On further cross-examination, Burgener admitted that his report did not use the phrase "substantially probable" and testified that he used the phrase "strong potential." Burgener testified that he was not aware of a definition of the term "substantially probable." Burgener further testified that he understood "substantially probable" to mean "considerably more likely than not" and used that standard in formulating his opinion.
The State rested and the trial court denied respondent's motion for a directed verdict.
Respondent testified on his own behalf that he had resided at the Sheridan Correctional Center since January 15, 1998. Prior to that time he had been held in a Department of Corrections facility for five years. Immediately prior to his detention in the Sheridan facility, he had been released for a period of time. In 1991, respondent pleaded guilty to an offense that occurred in 1990 involving a five-year-old boy. Respondent was incarcerated for six months and was released in June 1991. Respondent was arrested on a charge involving a ten-year-old boy in April 1993. Respondent participated in sex offender counseling at the Ben Gordon Center in De Kalb during the period between his release and his second arrest. Respondent further testified that he was committed to a juvenile facility in 1988 for possession of a stolen vehicle and remained there through 1989.
Respondent lived in Sandwich, Illinois in 1988 and knew the ten- year-old boy Doren referred to in his testimony. Respondent testified that the reports provided to Doren were inaccurate. Respondent denied having sexual contact with the boy, denied physically abusing the boy and denied forcing the boy to watch him engage in sexual contact with another individual. In 1993, respondent was charged and tried in connection with the alleged sexual contact with the boy. Respondent was found guilty and sentenced to 30 years' incarceration. Respondent's conviction was subsequently overturned and his case remanded for a new trial. Respondent pleaded guilty in exchange for a 10-year sentence. Respondent denied committing the offense but explained that he pleaded guilty after his attorney advised him that if he went to trial he would likely be convicted again and receive another 30-year sentence. Respondent anticipated actually serving less than five years incarceration and had already served three and one-half years of the sentence. Respondent remained in the department of corrections from 1993 through 1997.
Respondent testified that while he was incarcerated no one recommended that he obtain sexual offender counseling. Respondent met with mental health professionals in the Department of Corrections because he suffered from nightmares and insomnia. Respondent was prescribed a variety of medications and returned to his unit. Respondent was currently receiving Paxil for the treatment of depression, Klonopin for nightmares, and other medications to treat Crohn's disease.
Respondent testified that he believed that he required mental health treatment for depression. Respondent did not believe that a substantial probability existed that he would commit further sexually violent offenses. If given the option, respondent would seek inpatient mental health services at a local hospital.
Respondent further testified that he acknowledged committing a criminal sexual act against the five-year-old. Respondent did not believe that the child was at fault and believed he was at fault. Respondent testified that he never denied committing a sex act on the five-year-old victim when speaking with a health professional.
On cross-examination, respondent admitted that he believed he needed to be institutionalized for treatment of depression. Respondent testified that he fondled the penis of the five-year-old boy. Respondent was dating the boy's mother at the time. Respondent denied being sexually aroused by the incident and testified that he was drunk and high at the time and did not know why he committed the act. Respondent denied sexually assaulting the ten-year-old victim.
On further cross-examination, respondent admitted that he was sentenced to probation for the offense committed against the five-year- old. Respondent admitted one of the terms of his probation was to receive counseling. Respondent testified that after four months he stopped counseling and moved to Nebraska. Respondent testified that he did not receive counseling in Nebraska. Respondent admitted that he did not seek approval from his probation officer or the trial court before stopping counseling and moving out of the state. Respondent admitted fantasizing about fondling the five-year-old during the summer of 1998.
Outside the presence of the jury, the trial court asked defense counsel whether he intended to call an expert witness. Defense counsel indicated that although the expert was present in the courtroom, he had elected not to call him as a witness. The trial court questioned respondent regarding the decision. Respondent acknowledged that the court had provided him with an expert, but stated that he agreed with the decision not to call the witness. Defense counsel rested and renewed his motion for a directed verdict. The trial court denied the motion.
[The preceding material is nonpublishable under Supreme Court Rule 23.]
The jury found that respondent was a sexually violent person. The trial court entered judgment on the jury's verdict, ordered respondent committed to the Department, ordered a supplemental mental examination, and continued the matter for status. The matter was continued several more times for reasons unrelated to this appeal.
On January 4, 2000, the trial court conducted a dispositional hearing. Carl Wahlstrom, a psychiatrist, testified on behalf of the State. Wahlstrom reviewed a variety of written reports and examined respondent on September 14, 1999. Following the examination Wahlstrom reached a medical diagnosis of Crohn's disease, a chronic bowel inflammatory disease. Wahlstrom recommended that respondent's medical condition be monitored by a medical doctor, an internist, and that he be referred to a gastroenterologist if the disease did not remain in remission.
Wahlstrom further testified that he made a diagnosis of respondent's mental condition. Wahlstrom's diagnoses included major depression with psychotic features; alcohol, marijuana, and cocaine dependence; a severe, childhood-onset type of conduct disorder that had evolved into an antisocial personality disorder; and pedophilia. Wahlstrom formulated a treatment plan based on his diagnoses of respondent.
Wahlstrom testified that he believed respondent's depression required more aggressive treatment. He recommended that the antidepressant he was receiving be replaced with a different type of antidepressant and that an antipsychotic medication be added. Wahlstrom also recommended testing respondent to determine whether a thyroid disorder was contributing to his depression. Wahlstrom recommended that respondent's chemical dependence be treated with a treatment program incorporating elements of the Alcoholics Anonymous and Narcotics Anonymous programs. Wahlstrom further indicated that medication might be used in conjunction with a treatment program. Wahlstrom recommended that the antisocial personality disorder be treated in a structured program incorporating firm limit-setting as an element. For treatment of respondent's pedophilia, Wahlstrom recommended a variety of techniques, including group therapy, arousal control, and cognitive behavioral therapy.
Wahlstrom testified that he had reviewed the Act and was aware that it provided for treatment either in a secure institutional setting or conditional release. Wahlstrom opined that respondent should be treated in a secure institutional setting. Wahlstrom further opined that the treatment respondent would receive at the Sheridan treatment facility would be adequate to treat his mental condition. Wahlstrom believed respondent would receive adequate medical care at the facility but was concerned that he was in obvious pain and recommended that his medical condition be more fully evaluated for pain control. Wahlstrom opined that respondent would not be able to obtain the necessary treatment outside a secure institutional setting such as the Sheridan treatment center.
In response to questioning by the trial court, Wahlstrom opined that a psychiatrist who is not board certified in forensic psychiatry and did not have a great deal of experience would not be qualified to oversee the treatment plan he had outlined for respondent. Wahlstrom opined that an experienced psychiatrist should have oversight of the program.
Sadashiv Parwatikar, a psychiatrist, testified that he acts as a forensic consultant under a contract with the State of Illinois. Parwatikar reviewed respondent's records and interviewed him on September 20, 1998. Parwatikar diagnosed respondent with paraphilia, polysubstance ...