Appeal from the Circuit Court of Lake County. No. 02-MR-65 Honorable Christopher R. Stride and Fred Foreman, Judges, Presiding.
The opinion of the court was delivered by: Justice Zenoff
JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hutchinson and Hudson concurred in the judgment and opinion.
¶ Respondent, Robert D. Brown, was found by a jury to be a sexually violent person and was committed to the Department of Human Services by the circuit court of Lake County. He appeals. For the reasons that follow, we affirm.
¶ 3 On January 16, 2002, the State filed a petition pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2002)), alleging that respondent was a sexually violent person. The petition alleged that respondent had been convicted of the offense of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, ¶ 12-14) and was sentenced to 23 years in the Illinois Department of Corrections (DOC) in 1991, and had been convicted of rape (Ill. Rev. Stat. 1979, ch. 38, ¶ 11-1(a)) and was sentenced to 12 years' imprisonment in 1982. The petition further alleged that respondent was scheduled for parole within 90 days of the filing of the petition; that respondent suffered from eight mental disorders; and that respondent was dangerous to others because his mental disorders created a substantial probability that he would engage in acts of sexual violence. Attached to the petition was a psychological evaluation of respondent conducted by Dr. Anthony T. Schaab of DOC on October 9, 2001. Dr. Schaab concluded that respondent's mental disorders of paraphilia and personality disorder with antisocial features made it "substantially probable" that respondent would engage in continued acts of sexual violence should he be released into the community. On January 18, 2002, the trial court held a probable cause hearing, after which it found probable cause and remanded respondent to the county jail. The State and respondent filed jury demands.
¶ 4 For reasons not germane to this appeal, the case was continued by agreement for years without a disposition. On February 14, 2008, the State moved for an updated DOC evaluation, and on April 29, 2008, the State filed an amended motion for a "current" evaluation. In the amended motion, the State alleged that Dr. Schaab, who conducted the initial DOC evaluation, had retired from DOC and was prevented by contract from testifying at respondent's trial, thus making Dr. Schaab "unavailable." Respondent objected to a second DOC evaluation, arguing that a second evaluation "for the sole purpose of gathering evidence against [respondent]" violated respondent's due process rights. After a hearing, the trial court granted the State's motion, and Dr. Jacqueline N. Buck of DOC conducted a second evaluation of respondent. On June 5, 2009, the State was given leave to file its amended petition for commitment pursuant to the Act, based upon Dr. Buck's finding that respondent suffered from paraphilia, a mental disorder that predisposed respondent to commit acts of sexual violence.
¶ 5 Respondent's jury trial commenced on April 14, 2010. The State presented the following evidence. Dr. Buck, a clinical psychologist under contract with DOC, received a court order in July 2008 to examine respondent, who refused to cooperate in the examination. Dr. Buck then reviewed DOC records, Department of Human Services records, and police reports pertaining to respondent. Dr. Buck's records review included Dr. Schaab's report. Dr. Buck testified to the nature of respondent's sexually violent offenses and other relevant criminal history, which she considered in her evaluation of respondent. Dr. Buck also considered respondent's history of fights with other inmates, and she testified that those fights did not happen when respondent was housed in a maximum security facility, which indicated that his behavior was better in a highly structured environment. According to Dr. Buck, sex offender treatment was available to respondent while he was incarcerated, but he did not follow up on its availability except for attendance at five sessions. Eventually, respondent committed another sex offense while on parole. Dr. Buck attempted to interview respondent again in 2009. Respondent indicated that he did not want to participate, but he stayed in the room with Dr. Buck, talking. Respondent blamed his criminal conduct on his being young and using drugs. According to Dr. Buck, respondent expressed remorse and empathy for his victims "on a superficial level." Dr. Buck testified that his remorse was geared to "look what I have done to myself."
¶ 6 Dr. Buck opined that respondent suffered from mental disorders-paraphilia, major depression, substance abuse in a controlled environment, and antisocial personality disorder. Dr. Buck further opined that the mental disorder of paraphilia predisposed respondent to commit acts of sexual violence, which made him dangerous. Dr. Buck performed a risk assessment using various actuarial tools. Her opinion was that respondent's risk of reoffending was "quite high." She highlighted that respondent had not participated in sex offender treatment, that his belief that he would not reoffend was unfounded, and that he exhibited psychopathy. She explained that psychopaths do not reduce their criminal activity as they get older but continue to be as criminally oriented and as violent and aggressive as they have been in the past. Dr. Buck opined that it was "substantially probable" that respondent would reoffend.
¶ 7 Dr. Ray Quackenbush, a licensed clinical psychologist, performed an evaluation of respondent on behalf of the Department of Human Services following the trial court's finding of probable cause on the State's petition to have respondent found a sexually violent person. Dr. Quackenbush did a records review, including a review of Dr. Schaab's report. Dr. Quackenbush then attempted to interview respondent, who declined to speak with him. Dr. Quackenbush testified in detail to respondent's criminal offenses, as evidenced in various police reports. According to Dr. Quackenbush, respondent suffered from a number of mental disorders, including paraphilia, substance abuse, and personality disorder with antisocial features. Dr. Quackenbush testified that paraphilia, which manifests itself in deviant sexual behavior, is a permanent condition that requires treatment. Dr. Quackenbush opined that the paraphilia predisposed respondent to commit future acts of sexual violence. Dr. Quackenbush testified that respondent's refusal to submit to treatment and an incident in which respondent exposed himself to female staff while incarcerated were significant. Using actuarial tools, Dr. Quackenbush opined that respondent was very likely to reoffend.
¶ 8 Following a stipulation that the offenses for which respondent was convicted and sentenced to DOC were sexually violent offenses, the State rested. Respondent presented the testimony of Dr. Luis Rosell, a licensed clinical psychologist and forensic psychologist. Initially, Dr. Rosell was hired by the Lake County public defender's office to evaluate respondent with respect to the State's petition to have respondent civilly committed as a sexually violent person. In his first report, dated November 24, 2002, Dr. Rosell diagnosed respondent with paraphilia. However, in later reports, Dr. Rosell rescinded that diagnosis based upon what he perceived as a "controversy" over the use of the diagnosis. In addition to reviewing records, Dr. Rosell personally interviewed respondent on multiple occasions. Dr. Rosell opined that respondent did not have paraphilia or that, if he did, at the time of trial he no longer suffered from that condition, because respondent had not exhibited any deviant behaviors over the past 20 years of incarceration. According to Dr. Rosell, it was not "substantially probable" that respondent would engage in future sexually violent conduct.
¶ 9 Respondent testified in his own behalf. He testified that he was 53 years old. His mother was a "professional call girl," and his grandparents raised him until they died, after which respondent was "in and out" of foster homes. Respondent admitted that he committed both offenses for which he was sentenced to DOC. He testified that he had a "care-free attitude" then and that "nothing [mattered] except for what [he] wanted." Respondent testified that he had "remorse in [his] heart." He explained that he was using drugs at the times of the offenses. Respondent testified that he did not plan the sexual assaults, but he put himself in the wrong places at the wrong times. When he was trapped in a riot in Stateville, he saw that he had to respect others if he wanted respect. According to respondent, he took a lot of classes "that are not on the record," like an anger management class. Respondent testified that he came into contact with women as a trustee in DOC and that he never sexually attacked anyone. He denied that he had exposed himself. He testified that Michael Jordan was his "mentor" and that he wanted a chance to put his life back together. On cross-examination, respondent admitted that he never received sex offender treatment. He denied that he would benefit from treatment.
¶ 10 The jury found respondent to be a sexually violent person. Following a dispositional hearing, the trial court determined that conditional release was inappropriate. After the trial court denied respondent's ...