Appeal from the Circuit Court of Lake County. No. 97-CF-1313 Honorable John T. Phillips, Judge, Presiding.
The opinion of the court was delivered by: Justice Callum
The State charged defendant, George Johnson, with two counts of predatory criminal sexual assault of a child (720 ILCS 5/12--14.1(a)(1) (West 1998)) and one count of aggravated criminal sexual abuse (720 ILCS 5/12--16 (c)(1)(i) (West 1998)). The charges were based on defendant's alleged sexual abuse of four-year-old C.P. The State later filed a petition to have defendant declared a sexually dangerous person pursuant to the Sexually Dangerous Persons Act (the Act) (725 ILCS 205/0.01 et seq. (West 1998)). The State ultimately elected to proceed on the sexually dangerous person petition. Following a jury trial, defendant was found to be sexually dangerous, and the court committed defendant to the Department of Corrections and appointed the Director of the Department as his guardian. Defendant appeals, arguing that (1) he was denied the effective assistance of counsel; (2) the trial court erred in applying the rape shield statute (725 ILCS 5/115--7 (West 1996)) in a civil case; and (3) the jury was not properly instructed. *fn1 We affirm.
The evidence the State presented to prove defendant's sexual dangerousness was as follows. C.P. testified that when she was four years old defendant would baby-sit for her. Defendant was her mother's friend. According to C.P., defendant touched her "front part" under her waist, which C.P. described as the area where she goes to the bathroom. This happened more than once, and each time defendant would tell her not to tell anyone. C.P., however, told her mother, her grandmother, and her great-grandmother about the incidents.
C.P.'s grandmother, Pamela Hall, and great-grandmother, Linda Hall, testified about C.P.'s statements to them. C.P. told Pamela that defendant put his finger in her butt and licked her "privates." When Pamela confronted defendant about the incident, he told her that he had fallen asleep and, when he woke up, he found C.P. sitting on his face. Pamela testified that C.P. told her that defendant had played with her privates. Specifically, she told her that defendant had stuck his fingers inside her. After this incident, C.P. complained that it hurt to go to the bathroom, she would not wear underpants, and she would not let Pamela help her with her bath. C.P. would scream when she tried to move her bowels.
Dr. Karen Cervenka testified that she tried to conduct a physical examination of C.P., but that C.P. became very upset and agitated and would not let her do it. C.P. told her that someone had touched her private area.
A.R. testified that in 1979 she was 15 years old and staying in the same hospital as defendant. The defendant befriended her. They would share activities, and defendant would bring her candy. One day, in the TV room, defendant groped her breasts. Another time, in A.R.'s room, defendant had her take off all of her clothes. He then used his mouth and hands to touch her breasts and vagina. On another occasion, he had her pushed up against her bed, but hospital staff came in before anything happened. On at least four occasions, defendant stood outside and handed A.R. candy through her window. He would then have her undress and he would look at her. In addition to the testimony about the C.P. and A.R. incidents, the State introduced certified copies of defendant's prior convictions of aggravated indecent liberties with a child.
Two psychiatrists and a psychologist evaluated defendant. Dr. Peter Fink, a psychiatrist who works at the Isaac Ray Center, concluded that defendant suffered from the mental disease pedophilia. Specifically, defendant exhibited a chronic interest in young females. Fink reached his conclusion based upon an interview with defendant and the results of tests administered to defendant. One of the tests was a penile pleythsmography. This test involves sitting the subject in an easy chair in a quiet, cinder-block room. A circular string gauge is then fitted over the base of the subject's penis. The gauge expands when the penis becomes engorged with blood, and the growth of the penis is measured by a recording device that is attached to the gauge. Once a subject is hooked up to the gauge, he is shown various sexual stimuli involving children and adults of both sexes. Defendant's strongest reaction was to an audiotape of a pedophilic interaction with a young girl. Defendant also had reactions to adult women. The only reactions to homosexual stimuli were to children. Dr. Fink believed that defendant was a high risk to reoffend because defendant had arousals to illegal stimuli with children, defendant's arousal pattern was persistent over the past 20 years, and defendant had a pattern of denial and rationalization as to the cause of the arousal. Further, defendant had not taken steps to learn how to manage his interests and to lower his arousal pattern. Dr. Fink believed that defendant's treatment potential was low because defendant believed that his only problem was with the legal system. Defendant exhibited signs of paranoia and suspicion and believed that Dr. Fink was part of a vast criminal conspiracy against him.
Dr. Norman Stanley Miller, a professor of psychiatry at Michigan State University, conducted an evaluation of and a clinical interview with defendant. Additionally, Dr. Miller reviewed defendant's police and Department of Corrections records, and the results of psychological tests administered to defendant. Defendant was evasive, defensive, and argumentative during the interview and blamed others for his past and current predicament. Dr. Miller concluded that defendant suffered from pedophilia, voyeurism, exhibitionism, and an anti-social personality disorder. Dr. Miller believed that defendant was a substantial and significant risk to reoffend. This conclusion was based on defendant's having repeatedly engaged in pedophilic behavior while refusing to acknowledge that he had a problem. Dr. Miller believed that defendant's ability to comprehend his problem was minimal to nonexistent. Defendant is not a good candidate for sex offender treatment because he neither thinks he has a problem nor wants treatment.
Dr. Tony Alan Fletcher is a psychologist at the Isaac Ray Center who performed a series of psychological tests on defendant. Fletcher concluded that defendant suffered from pedophilia and a delusional disorder. Defendant's denial of his past pedophilic episodes led Dr. Fletcher to conclude that defendant was a high risk to reoffend. Dr. Fletcher believed that defendant was a very dangerous person and had the textbook profile of someone who has trouble controlling his impulses.
Ineffective Assistance of Counsel
Defendant first argues that he received the ineffective assistance of counsel. This argument consists of two components: (1) defendant's attorney was operating under a conflict of interest when he was under felony indictment or on probation during the entire time he was representing defendant, and (2) he was actually ineffective under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
Although proceedings under the Act are civil, the potential loss of liberty entitles a defendant named in a petition under the Act to the essential protections available in a criminal trial. People v. Bailey, 265 Ill. App. 3d 758, 761 (1994). Accordingly, a defendant in a sexually dangerous person proceeding is entitled to the effective assistance of counsel. Bailey, 265 Ill. App. 3d at 763. Where a constitutional right to counsel exists, there is a correlative right to representation that is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261, 271, 67 L. Ed. 2d 220, 230, 101 S. Ct. 1097, 1103 (1981). A per se conflict of interest, i.e., one that warrants reversal even without a showing of actual prejudice, will be found when there is a showing that a ...