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In re Detention of Erbe

November 13, 2003

IN RE: THE DETENTION OF JOHN M. ERBE,
THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOHN M. ERBE, DEFENDANT-APPELLANT.



Appeal from Circuit Court of McLean County No. 00MR86 Honorable Elizabeth A. Robb, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

UNPUBLISHED

Following a June 2002 bench trial, the trial court found defendant, John M. Erbe, to be a sexually violent person under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 through 99 (West 2000)). Following an August 2002 dispositional hearing, the court ordered him committed to the Department of Human Services (DHS) for institutional care in a secure facility.

Defendant appeals, arguing that (1) he received ineffective assistance of counsel when his initial appointed counsel (a) failed to challenge personal jurisdiction, and (b) moved to continue the probable-cause hearing; (2) the trial court abused its discretion by denying his motion for a Frye evidentiary hearing on the admissibility of evidence regarding actuarial instruments used by the State's experts in assessing defendant's risk of reoffending; (3) the court's finding that he was a sexually violent person was against the manifest weight of the evidence; and (4) the court abused its discretion by ordering him committed to institutional care in a secure facility. We affirm.

I. BACKGROUND

On June 14, 2000, the State filed a petition under the Act, seeking to have defendant committed as a sexually violent person to DHS indefinitely. At that time, defendant was an inmate at the Centralia Correctional Center and was scheduled for entry into mandatory supervised release on June 20, 2000, following the completion of his sentence on 1988 convictions for home invasion (Ill. Rev. Stat. 1987, ch. 38, par. 12-11) and aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12-14(a)(1)). On that same day, the trial court entered an order of detention in which the court (1) set a probable-cause hearing for June 19, 2000; and (2) appointed McLean County public defender Amy Davis to represent defendant.

On June 16, 2000, Davis filed a motion to continue the probable-cause hearing because she needed additional time to review the materials the State had filed with its petition. Davis then telephoned the trial court's secretary and indicated that she and the assistant Attorney General had agreed that the probable-cause hearing should be continued. The court informed counsel that it would reschedule that hearing if both parties agreed and requested that the attorneys agree upon a new hearing date. The assistant Attorney General later telephoned the court's secretary and indicated that the parties had agreed to reschedule the probable-cause hearing for June 26, 2000.

At the June 26, 2000, probable-cause hearing, defendant appeared with his appointed counsel. After considering the evidence presented, the trial court found probable cause existed and ordered defendant transferred to DHS for an evaluation, pursuant to section 30(c) of the Act (725 ILCS 207/30(c) (West 2000)).

In July 2000, defendant pro se filed a motion to dismiss the State's petition, alleging, inter alia, that (1) his probable-cause hearing was not held within 72 hours of the filing of the State's petition, as required by statute (725 ILCS 207/30(b) (West 2000)); and (2) he was not "properly served with process." That same day, defendant pro se filed a motion, seeking appointment of counsel other than a McLean County public defender on the ground that Davis moved to continue the probable-cause hearing without his consent.

At a July 2000 hearing on defendant's motion seeking appointment of other counsel, Davis informed the trial court that she requested a continuance (1) because she had other matters to which she had to attend when she received the State's petition; and (2) in "an effort for [her] to be prepared for [the probable-cause] hearing." She acknowledged that because her office usually receives the State's petitions under the Act "pretty much at the last minute," she routinely seeks to continue probable-cause hearings to allow time to carefully review the petitions. After considering the arguments, the trial court denied defendant's motion.

In January 2001, defendant filed a motion for a Frye evidentiary hearing (see Frye v. United States, 293 F. 1013 (D.C. Cir. 1923)) to determine the admissibility of evidence regarding actuarial risk-assessment instruments used by the State's experts in assessing defendant's risk of reoffending. In February 2001, the trial court conducted a hearing on defendant's motion and took the matter under advisement. Later that month, the court denied the motion, upon finding that (1) the actuarial risk- assessment instruments did not constitute scientific evidence subject to the Frye standard; and (2) even if the instruments were subject to the Frye standard, they had been generally accepted in the relevant scientific community.

From February 2001 through May 2002, the trial court granted several continuances. Also during that time, defendant pro se filed a petition for writ of habeas corpus in which he raised some of the same issues raised in his July 2000 pro se motion to dismiss. In November 2001, the court dismissed defendant's petition for writ of habeas corpus, and in May 2002, this court dismissed defendant's appeal from the November 2001 order.

In June 2002, the trial court conducted a hearing on defendant's pro se July 2000 motion to dismiss the State's petition. At that hearing, defendant was represented by a different appointed counsel, who adopted and argued defendant's motion. Although defendant's motion contained numerous allegations, defendant addressed only two allegations at the hearing--namely, that (1) his probable-cause hearing was not held within 72 hours of the filing of the State's petition, as required by statute (725 ILCS 207/30(b) (West 2000)); and (2) the trial court lacked jurisdiction because he was not "properly served with process." Defendant testified that he received the State's June 14, 2000, petition and the order of detention, which indicated that (1) the court had appointed a McLean County public defender to represent him; and (2) the probable-cause hearing was scheduled for June 19, 2000. However, he was not served with summons. He later learned that his probable-cause hearing was rescheduled for June 26, 2000. Defendant appeared at the June 26, 2000, probable-cause hearing, where he was represented by Davis. At that hearing, he attempted to tell the court that he had not been served with summons and had not asked for a continuance, but the court did not give him permission to speak. Defendant stated that he did not authorize Davis to file a motion to continue his probable-cause hearing. After considering the evidence and counsels' arguments, the trial court denied defendant's motion to dismiss.

At defendant's June 2002 bench trial, Dr. Jacqueline Buck, a clinical psychologist and special evaluator for the Illinois Department of Corrections (DOC), testified that she had reviewed defendant's DOC master file, which contained all of the court records related to defendant, including the written judgment of sentence, the presentence investigation reports, psychiatric and psychological evaluations, DOC records, and his criminal history.

Buck's review of defendant's master file showed that when defendant was 11 years old and living in California, he began engaging in criminal activity, including grand theft auto and shoplifting. He also began running away, fighting at school, and on one occasion, he attacked a teacher. When he was 13 years old, he was expelled from school after raping a 12-year-old girl. Around that time, defendant's mother moved from California to McLean County, Illinois. Defendant stayed in California and lived either on the streets or with one of his former stepfathers. In 1974, defendant was declared an "incorrigible juvenile" and was placed in juvenile hall and, later, several group homes. Defendant admitted raping a young girl during that time.

Later in 1974, when defendant was 15 years old, he moved to McLean County to live with his mother. He had been in McLean County for only three days when police arrested him for rape. They later released him to his mother. In 1975, defendant committed numerous offenses, including deviate sexual assault, armed robbery, home invasion, aggravated criminal sexual assault, and rape. In the rape case, he entered a woman's apartment, held a knife to her throat, and threatened to kill her. He raped her three times and forced her to perform oral sex on him. He then tied her up and left the apartment. A baby was in the room during the rape. (Buck acknowledged that in her report, she had mistakenly indicated that defendant had held a knife to the baby's throat.) Later in 1975, while incarcerated at the McLean County juvenile detention center, he sexually assaulted a male inmate and was charged with deviate sexual assault.

Based on some of defendant's 1975 offenses, the State filed a petition seeking to have defendant declared a sexually dangerous person. He was later found to be sexually dangerous based on the 1975 rape offense. Defendant was initially sent to DOC's youth division, where he participated in treatment for a few months. A jury later convicted him as an adult for the 1975 rape (McLean County case No. 75-CF-483), and the trial court sentenced him to 4 to 10 years in prison. Defendant was paroled in 1980.

In 1981, defendant was charged with rape, home invasion, and (attempt) burglary (McLean County case No. 81-CF-430). During this incident, he entered a woman's apartment, tied up the victim, and placed a sock in her mouth. He then removed the sock and tried to place his penis in her mouth. Defendant left after the victim convinced him that other people were in the apartment. A jury later convicted defendant of (attempt) burglary, and the trial court sentenced him to three years in prison.

Sometime following his 1983 parole in McLean County case No. 81-CF-430, defendant pleaded guilty to unlawful use of a weapon by a felon and was sentenced to five years in prison. In that case, defendant, armed with a gun, entered a woman's apartment. When the woman saw him, she ran from the apartment.

In 1988, defendant was convicted of aggravated criminal sexual assault and home invasion (McLean County case No. 88-CF-148), and the trial court sentenced him to 25 years in prison. In that case, he entered the apartment of three young women and forced one of the victims to have sex with him at knifepoint. He also dragged the knife across the victim's throat, stomach, and breasts and threatened to kill her. Defendant then tied up the victim and turned to a second victim, who fought him and screamed. Defendant ran from the apartment naked after the first victim freed herself and the third roommate woke up and tele-phoned police.

Defendant's master file also showed that he began using drugs when he was 11 years old. Over the next five years, he used marijuana, cocaine, heroin, and amphetamines. During that time, he was diagnosed with polysubstance dependency. Several of defendant's criminal offenses involved alcohol or other drugs.

Defendant's master file further showed that defendant admitted committing 11 or 12 rapes for which he was never apprehended. He blamed most of those rapes on his then-wife (to whom he was married from 1980 until 1988) because she would not engage in certain sexual activities. During his incarcerations, defendant had not participated in any sex-offender treatment.

Buck attempted to interview defendant in April 2000; however, he refused to participate. Although Buck preferred to conduct clinical interviews, such an interview was not necessary to formulate opinions regarding defendant.

Based on her review of defendant's master file and other information, Buck diagnosed defendant with sexual sadism and severe antisocial personality disorder. Three criteria exist for the diagnosis of sexual sadism, and defendant satisfied all three. Seven criteria exist for the diagnosis of antisocial personality disorder, and the presence of any three warrant the diagnosis. Defendant satisfied six of the seven criteria. Buck described antisocial personality disorder as "a violation of and disregard for the rights of others." Sexual sadism and antisocial personality disorder are the types of mental disorders that affect a person's emotional capacity and predispose a person to engage in future acts of sexual violence.

Buck also diagnosed defendant with "poly drug dependency without physiological dependency in a controlled environment," based on his long history of substance abuse. Buck explained that substance abuse was a factor in determining defendant's probability of reoffending. Defendant had not participated in any substance abuse treatment.

In assessing defendant's probability of reoffending, Buck used three actuarial risk-assessment instruments, all of which were the subject of defendant's January 2001 motion for a Frye evidentiary hearing: (1) the Minnesota Sex Offender Screening Tool-Revised (Minnesota Screening Tool-Revised); (2) the Static-99; and (3) the Violence Risk Appraisal Guide. She also administered a personality inventory (the Hare Psychopathy Checklist-Revised) in evaluating defendant. Buck had received about 150 hours of specialized training geared to the proceedings under the Act, including the administration of actuarial risk- assessment instruments and other evaluation tools. Defendant's scores on the three actuarial risk-assessment instruments placed him in "membership with a group of sex offenders who did sexually reoffend at a fairly high rate."

Buck described the Hare Psychopathy Checklist-Revised as a 20-item personality inventory. An individual who scores 30 or more on the Hare Psychopathy Checklist-Revised is classified as a psychopath. Those individuals "are two to four times as likely to reoffend with acts of violence when released to the community, as someone who scores lower than 25." A score of 30 is a "conservative" cutoff, and many researchers use a score of 25 as a cutoff for psychopathy. Out of the 20 items on the Hare Psychopathy Checklist-Revised, Buck was able to score 18 in testing defendant. The remaining two items she marked as omissions because she did not have enough data. The inventory was designed to allow for omitted items to be scored. Before factoring in the two omissions, defendant's raw score totaled 29. After factoring in the omissions, his raw score totaled 32.2. Buck acknowledged that she used some of the same scoring factors on two different items of the Hare Psychopathy Checklist-Revised. She stated that such use of scoring factors involved "a different way of looking at the behavior." Buck also acknowledged that she scored defendant as having a "flat affect" (meaning that he did not show emotion) based on five minutes of interaction.

Based on (1) Buck's review of (a) defendant's master file, (b) the results of the Minnesota Screening Tool-Revised, the Static-99, and the Violence Risk Appraisal Guide, (c) defendant's score on the Hare Psychopathy Checklist-Revised, and (d) defendant's mental disorder diagnoses; and (2) Buck's clinical judgment, Buck opined that it was "substantially probable" that defendant would sexually reoffend with acts of violence if he were released into the community. She also opined that defendant was at a higher risk of reoffending than the general prison population. Buck further opined that defendant had serious difficulty in controlling his behavior outside of a controlled environment.

Buck acknowledged that (1) defendant's sex offenses occurred while he was in his teens and twenties; (2) he had been incarcerated since then; and (3) his behavior in prison over the last several years had been "pretty good." Buck also acknowledged that defendant's failure to participate in sex-offender treatment did not increase his risk of reoffending. She further acknowledged that Carl Hanson, an authority in the field of sex- offender risk assessment, had stated in an article that the Violence Risk Appraisal Guide is a good predictor of general violence, but it has not been "particularly effective" in predicting sex-offense reoffending. Buck described Hanson's comment as a vague "cheap shot."

Barry Leavitt, a clinical psychologist and special evaluator for DHS, testified that he reviewed defendant's DOC master file and Buck's report. In July 2000, he approached defendant to initiate a psychological evaluation, and defendant agreed to participate in psychological testing. Leavitt administered the following tests to defendant: (1) a general aptitude measure for adults, which provides a baseline for an individual's intellectual functioning; (2) the Millon Multiaxial Personality Inventory Assessment (Millon Assessment); and (3) the Minnesota Multiphasic Personality Inventory (Minnesota Inventory). The Millon Assessment and the Minnesota Inventory provide information regarding an individual's overall personality functioning. Defendant's score on the general aptitude measure for adults was in the "low average range."

When Leavitt approached defendant in August 2000 to conduct a clinical interview, defendant refused to participate. Leavitt stated that the preferred method for evaluating an individual involves a clinical interview. However, Leavitt was able to formulate an opinion regarding defendant based on other available information.

Leavitt identified several "static" (unchanging) factors associated with an increased risk of reoffending, which defendant displayed. Those risk factors included the following: (1) refusal to participate in sex-offender treatment; (2) deviate sexual preferences; (3) multiple prior sex offenses; (4) offenses other than sex offenses; (5) early onset of sexually violent interests and behavior; (6) unrelated victims; (7) lack of motivation for treatment; (8) resistance to change; (9) anger problems; (10) low level of remorse; and (11) antisocial lifestyle.

Based on his review of all available information, Leavitt diagnosed defendant with (1) sexual sadism; (2) polysubstance dependence without physiological dependence within a controlled environment; and (3) severe antisocial personality disorder. Sexual sadism and antisocial personality disorder are the types of mental disorders that affect a person's emotional capacity and predispose a person to engage in future acts of sexual violence.

Leavitt used two actuarial risk-assessment instruments in evaluating defendant: (1) the Minnesota Screening Tool-Revised; and (2) the Static-99. The results of those actuarial risk-assessment instruments placed defendant in the category of highest risk of committing future acts of sexual violence. (As earlier stated, both of these instruments were challenged in defendant's January 2001 motion for a Frye evidentiary hearing.)

Based on the available information, Leavitt opined that defendant "possesses an exceedingly high and substantial probability of re[]offending at some time in the future." He also opined that defendant had serious difficulty controlling his sexually violent behavior.

Defendant did not present any evidence on his own behalf.

Based on the evidence presented, the trial court found that defendant was a sexually violent person.

At defendant's August 2002 dispositional hearing, Leavitt testified that he conducted a separate evaluation to identify defendant's treatment needs and the least-restrictive setting available to meet those needs. In forming his opinions, Leavitt reviewed the following sources of information: (1) defendant's past participation in sex-offender treatment; (2) defendant's motivation to participate in sex-offender treatment; (3) defendant's sex-offense history; (4) defendant's mental-health status; and (5) relevant risk factors.

Based on his review of all available information, Leavitt opined that (1) defendant's mental-health status had not changed; (2) defendant was not motivated to seek sex-offender treatment; and (3) defendant remained at an "exceedingly high risk" of reoffending in a sexually violent manner. He also opined that defendant needed to be ...


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