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People v. Swanson

November 15, 2002

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



Appeal from the Circuit Court of Du Page County. No. 99--MR--688 Honorable Edward R. Duncan, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Hutchinson

Respondent, John Swanson, appeals from the trial court's order finding him to be a sexually violent person pursuant to the provisions of the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 1998)). On appeal, respondent argues (1) the Act is unconstitutional under the United States Supreme Court's recent decision in Kansas v. Crane, 534 U.S. 407, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002); (2) the trial court erred in denying his request to dismiss the State's petition as untimely; (3) the trial court abused its discretion in allowing certain hearsay testimony; and (4) his trial counsel was ineffective for failing to object to testimony concerning the results of his penile plethysmograph test. We affirm.

In 1991 respondent pleaded guilty to the charge of aggravated criminal sexual assault and was sentenced to 18 years' imprisonment. On April 7, 1999, respondent was released from prison on mandatory supervised release. On May 10, 1999, respondent was again incarcerated after he violated the terms of his parole by leaving the state. As a result of this violation, respondent's date of discharge from the Illinois Department of Corrections (IDOC) for his aggravated criminal sexual assault conviction was recalculated to September 10, 1999.

On August 31, 1999, 10 days before respondent's scheduled discharge, the State filed a petition to commit respondent pursuant to section 40 of the Act. 725 ILCS 207/40 (West 1998). The petition alleged that respondent had several mental disorders, including paraphilia, polysubstance dependence, severe antisocial personality disorder, and severe narcissistic personality disorder. The State alleged that respondent was dangerous to others because his mental disorders created a substantial probability that he would engage in future acts of sexual violence. Accompanying the petition, the State provided a mental health evaluation of respondent prepared by psychologist Dr. Jacqueline Buck.

On December 17, 1999, respondent filed two motions to dismiss the State's petition. The first motion was predicated upon constitutional grounds and alleged that the Act's definitions of the terms "mental disorder" and "sexually violent person" were overly broad and vague and violated his right to substantive due process. See 725 ILCS 207/5(b), (f) (West 1998). In the second motion, respondent argued that the State's petition was untimely because it was not filed within 30 days of April 7, 1999, which was the date that respondent was first released on parole. See 725 ILCS 207/15(b) (West 1998). The trial court denied both motions.

On December 6, 2000, the trial court conducted a bench trial on the State's petition. Dr. Jacqueline Buck, a clinical psychologist employed by the IDOC, testified on behalf of the State. Dr. Buck testified that she performed a psychological evaluation of respondent on July 23, 1999. Dr. Buck explained that the victim of respondent's aggravated criminal sexual assault offense was a 14-year-old girl. Respondent, who was 26 years old at the time of the offense, threatened the victim with a knife and forced her to engage in an act of vaginal intercourse. Dr. Buck also detailed respondent's other relevant sexual history, which included an incident where respondent, age 16, was found molesting his 6-year-old brother. Respondent also reported that he was repeatedly molested by a male teacher during the fifth, sixth, and seventh grades. Finally, respondent reported that he had raped at least six girls prior to his incarceration. Respondent's criminal history included 9 felony convictions over a period of 19 years. However, respondent's 1991 conviction of aggravated criminal sexual assault was his only conviction of a sexual offense.

Dr. Buck diagnosed respondent as having a sexual disorder known as "paraphilia, not otherwise specified, sexually attracted to non-consenting persons." Dr. Buck also diagnosed respondent as suffering from polysubstance dependence, severe antisocial personality disorder, and severe narcissistic personality disorder. Dr. Buck testified that respondent refused to participate in various sexual-offender treatment programs offered to him while he was in prison. Respondent also regularly used drugs throughout his life and while he was in prison. Although respondent received treatment in prison for his drug abuse, respondent continued to use drugs. Dr. Buck opined that it was substantially possible within a reasonable degree of psychological certainty that respondent would reoffend with acts of sexual violence.

On direct examination, the State asked Dr. Buck whether she had discussed respondent's case with Dr. Agnes Jonas, another psychologist who had screened respondent for possible commitment prior to his supervised release in April 1999. Over respondent's hearsay objection, the trial court permitted Dr. Buck to testify as follows:

"I wanted to consult with [Dr. Jonas] to understand why she did not refer or recommend an interview for [respondent], and given what I was looking at in the file, to be sure that my recommendation was based [on] solid data.

And [Dr. Jonas] expressed dismay that she had overlooked those many reports and strongly recommended that he indeed be interviewed this time."

The State also called Dr. Phil Reidda, a clinical psychologist who had evaluated respondent in September and October 1999. Dr. Reidda opined that respondent was manipulative and lacked insight into his behavior. Dr. Reidda further opined respondent was at "a very high risk" to commit future acts of sexual violence. On cross-examination, defense counsel questioned Dr. Reidda about respondent's religious beliefs. Dr. Reidda testified that respondent had told him that some aspects of sexual-offender treatment were "pornographic" and "against God's word." When Dr. Reidda requested that respondent take a penile plethysmograph test, he initially refused on religious grounds. However, respondent subsequently agreed to take the auditory portion of the test.

On redirect examination, the State asked Dr. Reidda about the results of the plethysmograph test. Dr. Reidda testified that respondent's level of erectile response to auditory sexual depictions of forceful sex with a grammar-school-aged girl displayed deviant sexual arousal. On re-cross-examination, Dr. Reidda acknowledged that he did not know whether the test results included a margin of error.

Respondent called forensic psychologist Dr. Lyle Rossiter to testify on his behalf. Dr. Rossiter testified that he evaluated respondent in July 2000. Dr. Rossiter testified that respondent was alert and cooperative. Dr. Rossiter acknowledged that respondent had suffered from an antisocial personality disorder in his twenties. Dr. Rossiter opined that respondent had a "bona fide religious conversion," which he had been able to use for psycho-therapeutic purposes. Dr. Rossiter testified that respondent had made a legitimate effort to replace "the passion of his sociopathy with the passion of his religious investment." Dr. Rossiter opined that respondent was not feigning his religious conversion.

On cross-examination, Dr. Rossiter acknowledged that, although he agreed with Dr. Buck's diagnosis that respondent suffered from paraphilia, he disagreed with her diagnosis that respondent suffered from "severe" personality disorder. Rather, Dr. Rossiter viewed respondent's personality disorder to have been "modified." Dr. Rossiter agreed that, should respondent become ...


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