Appeal from the Circuit Court of Lake County. No. 99-MR-1054 Honorable Raymond J. McKoski, Judge, Presiding.
The opinion of the court was delivered by: Justice Kapala
A Lake County jury found respondent, Jackie Hughes, to be a sexually dangerous person under the Sexually Dangerous Persons Act (SDPA) (725 ILCS 205/0.01 through 12 (West 1998)) and the circuit court ordered commitment. This court affirmed the jury verdict and order of commitment. In re Detention of Hughes, 338 Ill. App. 3d 224 (2003). Our supreme court denied respondent's petition for leave to appeal but, under its supervisory authority, directed this court to vacate our opinion and reconsider our judgment in light of People v. Masterson, 207 Ill. 2d 305 (2003). We now vacate our prior opinion pursuant to that order and file this opinion in its stead. Upon reconsideration we reverse the judgment of the circuit court and remand for further proceedings.
In our initial opinion we rejected all of respondent's appellate contentions, including (1) that he was denied his statutory and constitutional rights to a speedy trial, (2) that it was error to allow a State expert to rely on and testify about a penile plethysmograph (plethysmograph) examination given to respondent, (3) that the State exercised a peremptory challenge to exclude the only black member of the venire, in violation of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), and (4) that the SDPA violates due process because it contains no provision requiring the State to prove that a respondent has a "serious difficulty in controlling behavior, " as required by the United States Supreme Court in Kansas v. Hendricks, 521 U.S. 346, 138 L. Ed. 2d 501, 117 S. Ct. 2072 (1997), and Kansas v. Crane, 534 U.S. 407, 151 L. Ed. 2d 856, 122 S. Ct. 867 (2002). In light of our supreme court's decision in Masterson, we continue to hold that the SDPA does not run afoul of substantive due process. However, we deem it necessary to remand the cause to the trial court for a new hearing on the State's petition so that the jury can be properly instructed on the elements that must be proved to sustain a finding that a person is subject to civil commitment under the SDPA. These standards were announced in Masterson and ensure compliance with the United States Supreme Court's decision in Crane. Masterson, 207 Ill. 2d at 330. We need not address respondent's third contention, as the remedy for a Batson violation is a new hearing (see People v. McDonald, 125 Ill. 2d 182, 200-01 (1988)) and we have determined that this cause must be remanded for a new hearing based on Masterson. We will address respondent's contention regarding the plethysmograph because it is likely to recur upon remand. We will also address respondent's speedy trial contention because, if meritorious, an outright reversal would be required.
On August 11, 1999, respondent was indicted on various charges pertaining to sex offenses involving minors. Respondent was taken into custody on these charges on July 22, 1999, and was denied bond on July 27, 1999. The trial court set the trial date for September 13, 1999.
On September 10, 1999, the trial court granted respondent's oral motion for a continuance and set the trial for October 13, 1999. On October 13, 1999, respondent moved to continue the trial because he needed to review DNA test results and possibly consult with an expert. The trial was continued until November 29, 1999.
On November 4, 1999, respondent filed a motion to suppress certain statements he made to the police, which was heard on November 10 and 17, 1999. Also, on November 17, a hearing was conducted pursuant to section 115--10 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115--10 (West 1998)) concerning the admission of certain hearsay statements. The section 115--10 hearing was continued to November 24, 1999.
When the continued hearing date arrived, the State moved to continue the trial, asserting it needed more time to prepare the minor victims for trial because it had recently learned that one had a learning disability and the other was having difficulty speaking due to fear. Over respondent's objection, the trial court granted the State's motion and set the trial for January 10, 2000.
The State filed its petition to declare respondent a sexually dangerous person on December 30, 1999. On that same date, respondent objected to the filing of the "sexually dangerous person" petition, objected to any further delay, and filed a demand for a speedy trial. The trial court set the matter for status on January 24, 2000, and for trial on February 14, 2000. Also, on December 30, 1999, the trial court suppressed certain statements respondent made to the police, because the State failed to prove that they were voluntary and that respondent waived his right to counsel.
On January 5, 2000, the trial court denied respondent's motion to preclude disclosure to court-appointed psychiatrists of the previously suppressed statements he made to the police. On January 6, the trial court ordered respondent transported for a plethysmograph test and ordered respondent to cooperate with all psychiatrists and their testing. The trial court also ordered respondent to be transported on January 13, 2000, to Dr. Oris Wasyliw for psychological evaluation.
On February 14, 2000, the trial court granted the State's motion to reschedule the hearing to March 31, 2000. Respondent's counsel answered ready for the February 14 trial.
On March 21, an attorney from the public defender's office moved for a continuance because respondent's former counsel had left the public defender's office. The trial court continued the trial to June 5, 2000. On June 2, respondent requested another continuance, and the trial was set for August 14, 2000. The jury trial on the State's petition commenced on August 14, 2000.
In addition to the other evidence at trial, the State offered the expert testimony of several witnesses. Oris Wasyliw, the director of adult clinical psychology at the Isaac Ray Center in Chicago, testified that he evaluated respondent. As part of that evaluation, he conducted a clinical interview of respondent as well as several objective tests. Wasyliw also reviewed prior evaluations, prior treatment records, police reports, and court documents.
According to Wasyliw, in the interview respondent said that he was attracted to young girls because of how they conducted themselves, including how they talked about what they saw their mothers do with their mothers' boyfriends. To Wasyliw, this meant that respondent was not talking about an individual but about an idea he had of how children conducted themselves as a group.
As for objective tests, Wasyliw administered a Minnesota Multiphasic Personality Inventory (MMPI). The MMPI determines whether a subject is being honest and whether he is exaggerating or minimizing a problem. It further assesses the presence, type, and severity of any emotional difficulties. The MMPI showed that respondent was minimizing or denying his problems. The test also indicated a very high score on the scale of antisocial personality and hostility.
Wasyliw also conducted a Millon Clinical Multiaxial Inventory (MCMI). Though similar to the MMPI, the MCMI is designed to conform more closely to the manual of mental health disorders that psychologists and psychiatrists use for classifying disorders.
The MCMI results were consistent with the MMPI in showing that respondent is trying to minimize or deny problems or areas of difficulty in his life. According to Wasyliw, that is a complicated way of saying that respondent is "hiding something."
Wasyliw also conducted a Rorschach inkblot test. The test showed that respondent is under a substantial amount of tension and somewhat emotionally fragile, suggesting that under increased stress he could have emotional problems. Second, it showed that respondent has very poor judgment in understanding other people. Third, the results indicated that respondent has a substantially narcissistic personality, which means he has an inflated view of himself and blames others when something goes wrong. According to Wasyliw, this indicates respondent does not accept responsibility for his actions.
Based upon his entire evaluation, Wasyliw opined that respondent suffered from a paraphilia disorder, which is a sexual arousal occasioned by something that society considers inappropriate and which can cause harm to either the individual or another person. Specifically, respondent suffers from pedophilia in that he is sexually attracted to female children and children outside his own family. Wasyliw further opined that respondent continues to be at risk for inappropriate sexual behavior because of his lack of insight into his problem, his minimizing or hiding of his problem, and his lack of motivation to change. Further, Wasyliw found this significant in light of respondent having been involved in treatment for over three years.
The State also offered the testimony of Rodgers Wilson, a forensic psychiatrist, also employed at the Isaac Ray Center. Wilson reviewed records, police reports, and test results for respondent. He also conducted a clinical interview of respondent.
Based on his review of medical records, his clinical interview, police reports, an Able screening test, which assesses sexual interest, and plethysmograph test results, Wilson concluded that respondent is a sexually dangerous person. Specifically, he opined that respondent is a pedophile and that he presents an ongoing risk to society. Wilson defined "pedophile" as a person "who has demonstrated dangerous sexual behaviors that pose a risk to society." The three factors that are considered in that diagnosis are the level of psychological disease, the person's insight into the disease and how it impacts others, and the person's ability to have remorse and refrain from certain behavior. According to Wilson, past behavior is considered an indicator of future conduct.
Wilson, who did not administer the test himself, described a plethysmograph as a test used to measure sexual interest. A gauge is placed around the subject's penis and he is exposed to a variety of visual and audio stimuli. The visual stimuli consist of pictures of males, females, adults, and children. The examiner looks for changes in circumference of the penis when the subject is shown or played the stimuli. In defendant's case, the test showed he had a sexual interest in prepubescent females, as well as adolescent males and females and adult males and females. The threshold for sexual arousal is a 10% increase in the circumference of the penis. Respondent exhibited a 35% increase as to prepubescent females and a 20% increase regarding adolescent females. Wilson defined prepubescent as before the age of 12. Respondent's reaction to prepubescent females was the strongest he displayed on the test.
Respondent was also administered a sexual interest questionnaire. According to Wilson, some of respondent's answers indicate he justifies his deviance by blaming the victims. Part of the questionnaire focuses on child molestation. Respondent answered that he had manipulated a child to get sexual pleasure and that he had molested more than one child.
In regard to his 1996 conviction, respondent admitted to abusing the child but explained that he became sexually aroused after the child touched him. Wilson explained that this was significant to his diagnosis of respondent as a pedophile because of respondent's inclination to distort and rationalize his behavior.
Wilson also reviewed police reports that contained statements respondent made to the police about prepubescent girls. Wilson found some of those statements to be consistent with his assessment of respondent's rationalization. For example, Wilson stated that it is clinically significant that respondent told the police it is easier for him to achieve a full erection when he is sexually engaged with a child as opposed to an adult woman. This was particularly relevant to Wilson's assessment of respondent as a sexually dangerous person because it shows a "poor prognosis" for treating respondent. ...