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People v. Burns

April 15, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
ROBERT W. BURNS, APPELLEE.



[6] The opinion of the court was delivered by: Justice Thomas

[7]  Docket No. 95987-Agenda 7-January 2004.

[8]  At issue in this case is whether a respondent filing an application for recovery under the Sexually Dangerous Persons Act (the SDPA) (725 ILCS 205/0.01 et seq. (West 2000)), is entitled to an independent psychiatric examination. The appellate court reversed the La Salle County circuit court's order denying respondent's motion for an independent psychiatric exam, holding that a respondent in a recovery proceeding has a due process right to such an exam. 337 Ill. App. 3d 224. We allowed the State's petition for leave to appeal from the appellate court's decision. 177 Ill. 2d R. 315(a).

[9]  BACKGROUND

[10]   On November 25, 1985, respondent, Robert W. Burns, was charged by information with aggravated criminal sexual abuse. Ill. Rev. Stat. 1985, ch. 38, par. 12-16. The information alleged that respondent had placed his mouth on the penis of a boy who was under the age of 13 for purposes of his own sexual arousal. Thereafter, the State filed a petition to declare respondent a sexually dangerous person under section 3 of the SDPA (725 ILCS 205/3 (West 2000)).

[11]   Under the SDPA, the State may seek an involuntary, indeterminate commitment in lieu of a criminal prosecution if a defendant is charged with a criminal offense and is believed to be sexually dangerous. See, e.g., People v. McDougle, 303 Ill. App. 3d 509, 515 (1999). Once the State files a petition to declare the defendant sexually dangerous, the trial court must appoint two psychiatrists to examine the defendant. 725 ILCS 205/4 (West 2000). A sexually dangerous person is defined as a person who has suffered from a mental disorder for a period of not less than one year, who has criminal propensities to the commission of sex offenses, and who has demonstrated propensities toward acts of sexual assault or sexual molestation of children. 725 ILCS 205/1.01 (West 2000). Proceedings under the SDPA are civil in nature (725 ILCS 205/3.01 (West 2000)), although a defendant is entitled to counsel and may demand a jury trial on the State's petition (725 ILCS 205/5 (West 2000)). In addition, the State must prove sexual dangerousness beyond a reasonable doubt. 725 ILCS 205/3.01 (West 2000).

[12]   Respondent waived his right to a jury trial on the State's petition to declare him a sexually dangerous person. At respondent's bench trial, Detective Lieutenant Tom Templeton of the La Salle County sheriff's department testified that he arrested respondent on December 27, 1985, for aggravated criminal sexual abuse. Templeton testified that after he gave respondent his Miranda rights, respondent stated that he was willing to talk and admitted that the allegations against him were true and that he had placed the victim's penis in his mouth. Respondent told Templeton that he had sexual urges toward children and that he had sexual contact with children possibly on average of one child a day for the past four years. Respondent would go to parks or would attempt to find jobs baby-sitting or cleaning houses in order to facilitate his access to children.

[13]   Dr. Carl Hamann, a medical doctor specializing in psychiatry, testified that he had examined respondent and concluded that respondent was a sexually dangerous person. Dr. Hamann testified that respondent had a psycho-sexual disturbance with a great immaturity that had lasted for more than a year. Respondent would be classified as a pedophile. The trial court also reviewed the deposition testimony of Dr. Myer Kruglik. The parties then stipulated that the victim, E.K., would testify that he is four years old and that before Christmas of the previous year, he was awakened by respondent "sucking his wee-wee."

[14]   At the close of testimony, the circuit court found that the allegations against respondent had been proven beyond a reasonable doubt and that respondent was a sexually dangerous person within the meaning of the SDPA. Pursuant to section 8 of the SDPA (725 ILCS 205/8 (West 2000)), the trial court ordered the Director of Corrections to take guardianship of respondent and committed respondent to the custody of the Department of Corrections (Department).

[15]   On May 14, 2001, respondent filed the application for discharge pursuant to section 9 of the SDPA (725 ILCS 205/9 (West 2000)). *fn1 Section 9 provides that a person committed under the SDPA may file an application at any time showing that he has recovered and requesting that he be released. Once an application for discharge is filed, the psychiatrist, sociologist, psychologist and warden of the institution where the applicant is confined must prepare a socio-psychiatric report concerning the applicant. 725 ILCS 205/9 (West 2000). In addition, the respondent is entitled to the appointment of counsel and a jury trial on his application. People v. Olmstead, 32 Ill. 2d 306, 314 (1965); 725 ILCS 205/5 (West 2000). Respondent's application for discharge alleged that respondent had demonstrated that he was no longer sexually dangerous, that he had attended group therapy and posed no risk to society or himself, that he had addressed and resolved the issues that led to his offending behavior, and that he had completed his treatment.

[16]   Respondent filed several pro se motions along with his application for discharge, including a motion to exclude the testimony and report of Dr. Mark Carich and a motion for an independent psychiatric examination. In his motion for an independent psychiatric examination, respondent alleged that Dr. Ijaz Ahmad Jatala, a psychiatrist employed by the Department of Corrections, would not give respondent an independent examination because he was an employee of the State of Illinois and therefore would comply with the Department's desire to find that respondent was still sexually dangerous. Respondent also alleged that Dr. Jatala would not conduct an independent examination but instead would prepare a socio-psychiatric report using boilerplate language and inserting respondent's name. In his motion to exclude the testimony of Dr. Carich, respondent alleged that Dr. Carich is not a psychologist and therefore could not prepare the socio-psychiatric report required under section 9 of the Act (725 ILCS 205/9 (West 2000)). Respondent further alleged that if Dr. Carich was called to testify on behalf of the State, he would give a biased report that would be misleading and would include "untrue alleged facts" concerning respondent.

[17]   The trial court denied respondent's motion to exclude Dr. Carich's report and testimony. The trial court also denied respondent's motion for an independent psychiatric examination. Citing this court's decision in People v. Trainor, 196 Ill. 2d 318 (2001), the trial court stated that "it couldn't be any clearer that the defendant doesn't have a right to an independent doctor." The trial court also found that respondent had failed to show bias on the part of the doctors working for the Department.

[18]   The trial court then conducted a hearing on respondent's petition. At the hearing, Dr. Carich testified that he had assessed and treated sexually dangerous persons for 10 years and had supported a respondent's application for discharge in 19 cases during that time. Dr. Carich stated that respondent had refused to be interviewed in connection with his application, so Dr. Carich based his testimony on his work with respondent since 1989 and his review of respondent's records. Dr. Carich testified that respondent had been committed for abusing more than 40 victims, both male and female, ranging in age from six months to nine years old. Dr. Carich believed that respondent was still sexually dangerous even though he had made some progress since his admission. Dr. Carich based his opinion on the fact that respondent had dropped out of his treatment program, had had sexual contact with other members of his group, and still exhibited some antisocial and borderline behaviors. Respondent also had performed poorly on a phallometric assessment for male infants, preschool males, resisting noncompliant teen males, and child violence. Dr. Carich believed that respondent presented a high risk to reoffend if he was released at this point.

[19]   On cross-examination, Dr. Carich testified that respondent had substantially improved his phallometric scores between 1997 and 1999 and had attempted to rejoin his treatment program after dropping out. During the time respondent was a member of the treatment group, he had faithfully attended group and had dramatically improved his personal hygiene and social skills. Dr. Carich also testified that respondent had self-reported 39 of his 40 victims and had accepted responsibility for his offenses and had developed empathy for his victims.

[20]   Dr. Jatala testified that he had diagnosed respondent as suffering from pedophilia, voyeurism and exhibitionism. Based upon Dr. Jatala's review of respondent's file and his work with respondent, Dr. Jatala concluded that respondent was still sexually dangerous and would have a high risk of reoffending if released into the community. On cross-examination, Dr. Jatala acknowledged that he had seen respondent only six or seven times in the past four years.

[21]   Finally, respondent testified that he understood that his pattern of engaging in sexual behavior with younger children was wrong. Respondent did not believe he had been cured, but believed he could conduct himself properly and keep from engaging in that type of behavior. Respondent stated that he could not be around children anymore.

[22]   Following testimony and closing arguments, the jury found that respondent was still a sexually dangerous person. Accordingly, respondent was remanded to the custody of the Department.

[23]   Respondent appealed, claiming, inter alia, that the trial court had erred in denying his motion for an independent psychiatric examination and had erred in denying his motion to strike Dr. Carich's report and testimony. The appellate court agreed with respondent that he had a right to an independent psychiatric examination under the due process clause of the United States Constitution. 337 Ill. App. 3d 224, 227. The appellate court noted that pursuant to Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), courts must consider three factors when considering a due process issue: (1) the liberty or property interest with which the State has interfered; (2) the risk of erroneous deprivation of the interest through the procedures already in place and the probable value of additional or substitute procedural safeguards; and (3) the effect the administrative and fiscal burdens would have on the State. 337 Ill. App. 3d at 227.

[24]   With regard to the first factor, the appellate court found that there was little question that a respondent's right to liberty is jeopardized under the SDPA. 337 Ill. App. 3d at 227. With regard to the second factor, the appellate court noted that at any stage in a commitment proceeding, a respondent is at serious risk of his liberty being erroneously deprived. 337 Ill. App. 3d at 227. Consequently, a respondent at a commitment proceeding and at a recovery proceeding must be provided the essential protections available at a criminal trial, such as the right to a jury, representation by counsel, and proof of sexual dangerousness beyond a reasonable doubt. 337 Ill. App. 3d at 227. The appellate court concluded that under notions of due process, the rights available to a respondent at a commitment or recovery proceeding include the right to an independent psychiatric examination. 337 Ill. App. 3d at 227. The appellate court reasoned that disallowing a respondent's request for an independent examination would place a respondent at an extreme disadvantage because the jury is left only with the State expert's opinion as to the respondent's mental state. 337 Ill. App. 3d at 227. The court acknowledged that a respondent can bring a motion for appointment of an independent expert at a recovery proceeding, but noted that such motions are often denied by the court because the respondent fails to provide evidence of bias or prejudice. 337 Ill. App. 3d at 228. The court found this "safeguard" inadequate, because a respondent lacks the means with which to prove bias or prejudice. 337 Ill. App. 3d at 228. The appellate court conceded that providing a committed person with an independent expert's examination would impose a significant fiscal burden on the State because there is no limitation on ...


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