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In Re the Commitment of Leroy Kelley v. Leroy Kelley

May 11, 2012

IN RE THE COMMITMENT OF LEROY KELLEY PETITIONER-APPELLEE,
v.
LEROY KELLEY, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County The People of the State of Illinois, 07 CR 80003

The opinion of the court was delivered by: Justice McBRIDE

The Honorable Timothy J. Joyce, Judge Presiding.

JUSTICE McBRIDE delivered the judgment of the court, with opinion.

Presiding Justice Epstein and Justice J. Gordon concurred in the judgment and opinion.

OPINION

¶ 1 In 2010, a jury found respondent, Leroy Kelley, to be a sexually violent person under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 to 99 (West 2010)). Following a subsequent dispositional hearing, the trial court ordered respondent committed to the Illinois Department of Human Services (DHS) for institutional care in a secure facility. Respondent appeals, arguing that: (1) the trial court abused its discretion when it denied respondent's motion in limine to stipulate to his prior convictions for sexually violent offenses and to preclude the State from referring to the name of those convictions; and (2) he was denied a fair trial when the State argued details of his past crimes as substantive evidence in closing arguments.

¶ 2 The present action began on April 24, 2007, when the State filed a petition pursuant to the Act seeking to have respondent adjudicated a sexually violent person and committed to the care and custody of the DHS. The petition alleged that in 1977 respondent was convicted of the sexually violent offense of deviate sexual assault and that he was sentenced to a term of 40 years' imprisonment. The petition further alleged that respondent had been diagnosed with the mental disorder of paraphilia, not otherwise specified, non-consenting persons (paraphilia NOS), which was a congenital or acquired condition affecting respondent's emotional or volitional capacity which predisposed respondent to commit acts of sexual violence. Finally, the petition alleged that respondent was dangerous because his mental disorder made it substantially probable that he would engage in acts of sexual violence.

¶ 3 On April 24, 2007, after reviewing the State's petition, the trial court ordered respondent transferred to a DHS detention facility upon his release from the Illinois Department of Corrections (DOC). On June 26, 2007, following a hearing on the petition, the trial court found that there was probable cause to believe that respondent was a sexually violent person and continued the order of detention until trial.

¶ 4 Prior to trial, respondent filed two motions in limine that are relevant to this appeal. In the first, respondent sought to stipulate that he had been convicted of sexually violent offenses without the jury being informed of the names of those specific offenses. In the second motion, respondent sought to limit testimony by the State's expert witnesses regarding the details of respondent's prior sexually violent offenses. The trial court denied these motions but agreed to provide the jury with limiting instructions regarding how the testimony could be considered.

¶ 5 At respondent's jury trial, the State presented the testimony of two expert witnesses: Dr. Ray Quackenbush and Dr. Steven Gaskell. Dr. Quackenbush testified that he was a licensed clinical psychologist employed by Affiliated Psychologists, Ltd. He was also approved by the Illinois Sex Offender Management Board to provide treatment and evaluation of sexual offenders. The trial court found the doctor to be an expert in the field of clinical psychology.

¶ 6 Dr. Quackenbush testified that the DOC referred respondent for a full psychological evaluation to determine if he should be recommended for possible civil commitment as a sexually violent person, and the doctor was appointed to conduct that evaluation. As part of that evaluation, Dr. Quackenbush first reviewed respondent's master file, which was a "complete set of documents dealing with his criminal history and his involvement with the Department of Corrections." Among other things, the file included court records, victim statements, medical records and respondent's disciplinary history while in the DOC. All of these documents are reasonably relied upon by experts in conducting a sexually violent person evaluation. Dr. Quackenbush also interviewed respondent in December of 2006 at the Stateville Correctional Center for approximately 1 hour and 45 minutes. The doctor prepared a report after completing his evaluation on December 19, 2006. He then evaluated respondent again in April of 2007, which included updating his reading of respondent's master file and interviewing respondent againt at the Dixon Correctional Center for 1 hour and 15 minutes. The doctor prepared a second report on April 18, 2007. Finally, to keep his opinion current for respondent's trial, Dr. Quackenbush reviewed additional documents as they became available, including records from the DHS treatment and detention facility where respondent was residing at the time of trial.

¶ 7 Dr. Quackenbush testified that in 1977 respondent was convicted of the sexually violent offense of deviate sexual assault and that the facts underlying that conviction were relevant to forming the doctor's opinion. In that case, respondent was on probation from another case when he confronted a woman exiting a garage. He put a knife to her throat and said, "don't scream or I'll kill you." He asked the woman for money, and when she said that she did not have any, he forced her to open the trunk of her car and stuffed a rag into her mouth. He then had her put his arms around him so it looked like they were together and they walked into her apartment. Respondent blindfolded the victim and took a number of items from her apartment. Respondent then opened his pants and showed the victim his penis and asked her to perform oral sex on him. She refused and respondent repeated his demand. When the victim again refused, respondent tied the victim's hands behind her back, placed her on the ground, and put a step ladder on top of her and left.*fn1 After a jury convicted him of deviate sexual assault, respondent was sentenced to 40 years' imprisonment.

¶ 8 Dr Quackenbush also considered the facts of two other sexually violent offenses for which respondent was convicted in 1973. In the first case, respondent and his brother and sister were walking down the street when they saw a woman they knew. Respondent forced the victim to the back of a building and then raped her. Afterwards, he told the victim he had been interested in her for some time and asked her to be his girlfriend. When respondent eventually let the victim leave, she went to her apartment and told her boyfriend what happened. When the boyfriend found respondent, respondent pulled a gun and then ran away. Respondent was convicted of rape in that case following a bench trial and was sentenced to four to six years' imprisonment.

¶ 9 Several months after this rape, respondent was arrested for another rape. In that case, respondent approached a vehicle containing two women and pulled a gun and entered the vehicle. After driving a short distance, respondent took both women out of the car and raped one of them in the backyard of a residence. He forced the women back into the car, drove a short distance, and then forced both women out of the car and raped them. Respondent pled guilty to rape and was sentenced to four to six years' imprisonment. Dr. Quackenbush testified that all three crimes were similar in that respondent used a weapon and forced the victim to engage in sexual activity against her will, and each had the potential to cause serious injury to the victim.

¶ 10 Dr. Quackenbush testified that in forming his opinion, he also considered the facts and circumstances of respondent's non-sexual criminal history. Respondent had an "extensive criminal history," including an arrest for burglary, an arrest and conviction for armed robbery, and an arrest and conviction for aggravated assault. During his interview, respondent also told Dr. Quackenbush about one sex crime that the doctor was unaware of. Respondent told Dr. Quackenbush that he was first arrested for statutory rape of his girlfriend when he was 19 and she was 16. When his girlfriend became pregnant, her father had respondent arrested but the charges were later dropped.

¶ 11 Dr. Quackenbush also considered the facts and circumstances of respondent's institutional adjustments in the DOC in forming his opinion in this case. Respondent had an "extensive disciplinary history in the [DOC]," including over 250 disciplinary actions against him. This was an "unusually high number," even for someone serving a long sentence. The facts of those disciplinary actions were important to the doctor. Several disciplinary actions were for sexual misconduct, and there were numerous disciplinary actions for fighting, intimidation or threats, arson, and throwing liquid on or attacking correctional officers. The sexual misconduct actions were important to the doctor because they occurred late in his sentence, and the most recent sexual misconduct occurred within two years of respondent's release from prison. In one instance, respondent was masturbating in front of a nurse and, in another, respondent forced an inmate to perform oral sex on him in a prison closet.

ΒΆ 12 The doctor also considered the facts and circumstances of respondent's adjustment while on parole. Respondent had been on parole three times and he violated parole each time. His most recent sexual offense occurred while respondent was on parole for the two rape charges. While respondent was on parole the first time for his most recent conviction, he made threats against his "host" and the staff of the DOC. He demanded money from his host and attempted to get her to go to the cash machine and get money. He also attempted to have her submit to a full-body massage. His host finally "had enough" and went to the parole department. Respondent's parole was violated and he was returned to the DOC for six months. After he was again released on parole, respondent was hospitalized for a period of time for medical reasons. During his hospitalization, respondent was masturbating in his bed when a nurse walked into the room. He asked her to massage him and she refused. Respondent then wrote his phone number out and pressed it into the nurse's hand. On another occasion in the hospital, respondent propositioned a 14-year-old female hospital volunteer who entered his room. After she left his room, respondent tried to follow her ...


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