Appeal from the Circuit Court of Cook County. No. 07 CR 80002 Honorable Michael B. McHale, Judge Presiding.
The opinion of the court was delivered by: Justice Steele
JUSTICE STEELE delivered the judgment of the court, with opinion.
Justices Neville and Sterba concurred in the judgment and opinion.
¶ 1 Following a jury trialin the circuit court of Cook County, respondent Justin Fields was found to be a sexually violent person (SVP) under the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 et seq. (West 2010)).*fn1 The trial court subsequently entered an order committing respondent to a secure facility for institutional care and treatment. On appeal, respondent argues that: (1) he was denied a fair trial when the prosecution improperly commented about his custodial status and nonparticipation in treatment, as well as improperly argued testimony from the State's expert witnesses as substantive evidence, during its closing argument that shifted the burden of proof and violated orders in limine; (2) the trial court erred in denying his motion for mistrial based upon the prosecution's allegedly improper remarks during closing argument; (3) the State failed to prove beyond a reasonable doubt that he was an SVP under the Act; and (4) he was denied his right to a dispositional hearing under the Act (725 ILCS 207/40(b) (West 2010)) before the commitment order was entered. While we reject respondent's challenges to the prosecutor's remarks during closing argument and the sufficiency of the evidence against him, we remand the cause to the trial court to conduct a dispositional hearing allowing respondent to present testimony and evidence for its consideration in framing the commitment order.
¶ 3 On August 23, 2005, the respondent, then 21 years old, was arrested and charged with with approximately 20 counts for various offenses, including aggravated criminal sexual abuse, aggravated kidnapping, and possession of a stolen motor vehicle, in Cook County circuit court case number 05 CR 21674. He subsequently pled guilty to one count of aggravated sexual abuse and one count of kidnapping stemming from the events involving a nine-year-old male victim. He was sentenced to three years' imprisonment in the Illinois Department of Corrections (DOC).
¶ 4 Petition for Commitment
¶ 5 Prior to his mandatory supervised release, the State filed a petition on February 14, 2007, for respondent's involuntary commitment under the Act. The petition alleged, among other things, that respondent was an SVP as defined by the Act; that respondent was diagnosed by Barry Leavitt, Psy. D., as having the mental disorder of pedophilia; and that respondent's mental disorder made it substantially probable that he would engage in sexually violent acts. Dr. Leavitt's evaluation was attached to the petition.
¶ 6 On February 15, 2007, the trial court entered an order to have respondent detained in a facility under the custody of the Illinois Department of Human Services (DHS). On July 25, 2007, the trial court entered a memorandum opinion and order finding probable cause for respondent's commitment under the Act following hearings that commenced on April 17, 2007, and concluded on June 18, 2007. Counsel for the parties filed jury demands on the same date. Further, Lesley Kane, Psy. D., was appointed as the respondent's expert to conduct an assessment and evaluation of the respondent.
¶ 8 Prior to trial, the parties engaged in discovery, including depositions and document production, and respondent filed various motions. For the purposes of our discussion, this section highlights motions in limine related to the issues raised on appeal. On August 30, 2010, respondent filed two motions in limine. One motion sought to limit testimony about the respondent's background proffered by the State's witnesses only to show the bases for their opinions and not as substantive evidence in accordance with Wilson v. Clark, 84 Ill. 2d 186 (1981). Respondent also requested an appropriate instruction for the jury. The second motion sought to preclude any testimony regarding respondent's custodial status, to which the State objected.
¶ 9 On September 17, 2010, the trial court conducted a hearing on respondent's motions. The trial court granted the motion brought under Wilson, with no objection by the State. The trial court agreed to provide a limiting instruction to the jury before each witness testified and during closing instructions. The trial court also cautioned the State to preface comments during closing arguments that the information was relied upon by the witnesses in forming their opinions. As for the motion regarding respondent's custodial status, the trial court granted the motion in part, admonishing the State not to make "unnecessary or gratuitous" references to respondent's custodial status. In response to the State's request for clarification, the trial court indicated it was acceptable to ask routine questions, such as where an interview with respondent occurred, and noted respondent's custodial status would come up in anticipated discussion regarding disciplinary tickets contained in respondent's master file. Indeed, the trial court expected the term "did" would have to be used relative to respondent's conduct while in custody.
¶ 11 After some continuances, the jury trial was scheduled to begin on March 22, 2011. On March 22, 2011, the jury was selected. Before the trial proceedings began the following day, respondent moved in limine for the trial court to instruct the jury before and after every witness's testimony, as well as prior to deliberations, about the limited purpose of their testimony about respondent's background under Wilson in explaining the bases for their opinions and not as substantive evidence. The State objected to the limiting instruction being read after each witness's testimony. Referring to his notes when the issue was previously raised, the trial judge denied the request and indicated he would issue the limited instruction to the jury before each witness testified and with the closing instructions. The court then proceeded with other preliminary matters, including admonishing the jury about respondent's innocence until proven guilty, the State having the burden to prove beyond a reasonable doubt its allegations, and the opening statements by the parties were not evidence. The State called Dr. Leavitt as its first witness. Before he testified, the trial judge cautioned the jury, consistent with the order in limine, about the limited purpose of his testimony.
¶ 13 Dr. Leavitt testified that he was a licensed psychologist in Illinois and had been licensed to practice for approximately 25 years. He had his own clinical and forensic practice that involved general and psychological treatment of juveniles and adults individuals, and specialized forensic assessments of sexually violent persons in Illinois and other jurisdictions and of issues that may be relevant in court. He previously worked for about 25 years with Affiliated Psychologists, a clinical and forensic practice located in Chicago, Illinois, that had a contract with the DOC to conduct screenings. He described his educational background, which included a doctoral degree and a master's degree in clinical psychology. Over the last 25 years, he specialized in the general area of sexual abuse, with the last 15 or more years focusing in the area of evaluation and risk assessments of juvenile and adults who had committed assorted sexual offenses. He noted that the "far majority" of evaluations did not result in SVP referrals. Since 1998, he had conducted nearly 200 evaluations of sex offenders and SVPs. Moreover, he had conducted or overseen approximately several thousand screenings for the DOC's sexually violent persons unit while working at Affiliated Psychologists. Along with membership in various professional organizations, he had been approved by the Illinois Sex Offender Management Board regarding assessment and treatment of adult and juvenile sex offenders. He had testified and been qualified as an expert in clinical and forensic psychology, specifically regarding sex offender evaluations, diagnosis and risk assessments, over 100 times in Illinois courts throughout the state. The State tendered Dr. Leavitt as an expert witness. The trial court qualified him as an expert, with no objection by the respondent.
¶ 14 Dr. Leavitt testified that he was familiar with the general purpose of the Act. He explained the DOC's responsibility related to the Act to screen, evaluate, interview, and identify persons who met the criteria, and report opinions about potentially eligible persons to the Attorney General's office for consideration. In 2007, Affiliated Psychologists had a contract with the DOC to conduct screenings, evaluations, and interviews. He reiterated that about 90% of the individuals screened did not meet the necessary criteria for commitment under the Act (due to no diagnosis and/or no risk), and that less than 5% were referred to the next phase after screening. He conducted a clinical evaluation of the respondent, who was scheduled for release on February 19, 2007, to determine if he was a candidate for commitment under the Act. Respondent agreed to the interview, which lasted approximately 31/2 hours, and only the two of them were present. He stated that he followed the standard protocol in evaluating respondent. Prior to his interview with respondent, he reviewed records made available by the DOC, such as respondent's master file, which consisted of disciplinary reports, criminal history (with details about the offense for his current imprisonment), medical and health evaluations, and other materials available in his correction file, along with police reports and treatment evaluations. He testified that these documents were the type reasonably relied upon by experts in the field when conducting evaluations, and that he relied upon these documents in evaluating respondent. He prepared a written evaluation on February 12, 2007. At some point after his report, he learned respondent's birth date on the report, which was based upon the records he reviewed, was inaccurate as respondent was a year younger than the date on the records.
¶ 15 Dr. Leavitt testified that respondent's criminal history was relevant in forming his opinion. He testified about a 2005 offense involving aggravated criminal sexual abuse and kidnapping, to which respondent pled guilty and for which he was sentenced to three years' incarceration after being charged with over 20 counts. When respondent was 21 years old, he asked a 9-year-old male whom he knew to get into a stolen car that respondent was driving and offered to buy gym shoes for the minor. Respondent drove to a vacant or abandoned apartment building where he fondled the minor's genitals while the child was lying on the floor. According to the record Dr. Leavitt reviewed, respondent refused to stop at the victim's request. When the victim began crying, respondent stopped, drove the victim to a gas station, and told him to walk home. He also reviewed respondent's signed handwritten statement confessing to his actions and expressing experiencing sexual arousal from the encounter. Respondent denied committing the offense when he met with Dr. Leavitt.
¶ 16 He also considered an offense that occurred on May 24, 2000, when the respondent was 15 years and 8 months old and was riding a bicycle with a 9-year-old male on the back. Respondent rode into an alley, turned around, and fondled the minor's genitals through his sweat pants. Although respondent was initially charged with criminal sexual assault, he eventually pled guilty to simple battery, was adjudicated a delinquent, and sentenced to probation. The victim's mother requested that respondent be charged with a lesser offense if he received counseling. Dr. Leavitt testified that respondent also denied committing this offense during their meeting. Although the respondent's conviction was for simple battery, he considered the offense and stressed that viewing the details of a given case was important because many offenses contained a sexual component that was helpful in understanding potential mental disorders and potential risks.
¶ 17 Dr. Leavitt testified that the details surrounding these offenses were important for two primary reasons: both offenses involved nine-year-old males and the second incident reflected an escalation in respondent's behavior from the first offense.
¶ 18 Dr. Leavitt further testified he considered respondent's non-sexual juvenile and criminal history in forming his opinions. He testified about respondent accruing curfew violations and school truancy beginning at age 10; being expelled from his home at age 12; being adjudged delinquent and charged with aggravated arson at age 14; selling drugs between ages 15 and 17; and being in and out of various juvenile detention facilities from ages 13 to 18. Additionally, he referred to records showing respondent reportedly used aliases and different birth dates during contact with law enforcement. He also testified about respondent's intimate life, as respondent stated that he could not meaningfully relate, including sexually, to anyone near his age. During their interview, respondent described having a relationship with a much older woman prior to his imprisonment and dating older women while an adolescent.
¶ 19 Moreover, Dr. Leavitt testified that respondent's behavior while in DOC custody was relevant in forming his opinion. He testified about two particular incidents involving sexual misconduct that occurred while respondent was in the DOC's juvenile division. The first incident, which occurred in February 2002, involved the staff observing respondent "firmly" grabbing another resident's buttocks and laughing when the staff reprimanded him. The second incident, occurring a few weeks later, involved the staff observing respondent trying to retaliate against another resident by grabbing the other resident's buttocks. Dr. Leavitt indicated that these incidents demonstrated respondent's inability or refusal to control his impulses, even in a structured environment.
¶ 20 Dr. Leavitt opined about respondent's behavior while in a DHS treatment and detention facility that he found relevant. In March 2009, a drawing of a nude child with a male figure standing over the child was discovered in respondent's laundry. In April 2010, respondent was investigated for creating and distributing child pornography on a flash drive to other residents. *fn2 The DVD reportedly contained enlarged images of young children's private parts, such as genitals and buttocks. Dr. Leavitt admitted that he did not see the images depicted in the drawing or on the DVD. He believed that this showed respondent's preoccupation with young males. During the four years while respondent was there, the records showed that respondent had numerous notations and violations of rules, including a physical fight in July 2010 with a resident believed to be involved in the DVD investigation, which exhibited respondent's behavioral problems consistent with antisocial attitude.
¶ 21 He also testified about whether respondent participated in sex offender treatment. He did not know if such treatment was offered while respondent was in DOC custody. He noticed respondent briefly attended a few sessions early on before withdrawing. Respondent also participated in a few groups, but overall, Dr. Leavitt saw no indication that respondent participated in specific sex offender treatment for a sustained period. When they met in 2007, respondent told him that treatment "would be a waste of time," but that he would attend if required to do so.
¶ 22 Dr. Leavitt testified that he relied upon the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) Text Revised (DSM-IV-TR), an authoritative manual in his field, in making his diagnosis. He formed an opinion, within a reasonable degree of psychological certainty, that respondent suffered from a mental disorder of pedophilia, with a secondary diagnosis of antisocial personality disorder. He also testified about the age of onset for an offender in diagnosing pedophilia disorder as respondent was 15 years and 8 months old when he committed the 2000 offense. He opined that the incidents in the DHS facility confirmed his opinion as they involved continued sexually deviant behavior, even in a structured environment. He emphasized that pedophilia is the mental disorder affecting respondent to commit future sexually violent acts and described how the two diagnoses worked together, with the secondary diagnosis serving as an additional risk factor regarding respondent's refusal or inability to adhere to any external controls.
¶ 23 Dr. Leavitt testified about the criteria he considered in making his diagnosis of respondent's antisocial personality disorder: since age 15, he demonstrated a general disregard and disdain for rules and welfare of others, manifested by the tendency to break societal rules that led to arrest and/or incarceration, and the disciplinary violations that respondent accrued.
¶ 24 Dr. Leavitt used and relied upon three actuarial instruments in forming his opinion. The Static 99, which was the most widely used in the field for placing an individual in the risk category of recidivism, contained 10 items. A score of six or higher was considered high risk of reoffending; respondent scored an eight. The Static 99R was a revised version of this instrument and included an adjustment of the age-related (and first) factor. Respondent also scored an eight on this instrument, which placed him in a high risk category. Dr. Leavitt also utilized the Minnesota Sex Offender Screening Tool Revised (MnSOST-R) that contained 16 items. The score was based on a combined record review and self-reported information to place the individual within a risk category over a six-year period of time to determine whether the person would be re-arrested for committing a sexually offensive act. Using this instrument, respondent scored nine, which placed him in a high risk category. Dr. Leavitt explained that this score translated into a 57% likelihood of an arrest for a sexual offense within six years. He noted that the actuarial tests were starting points and were more likely to underestimate the risk of reoffending.
¶ 25 In addition to the instruments, Dr. Leavitt testified about dynamic factors (potentially changeable factors) he considered that further substantiated understanding of an individual's risk level. He viewed respondent's history in applying five factors. First, he testified about respondent's early onset and persistence and/or preoccupation with young male children and difficulty controlling impulses. Second, he noted respondent's lack of meaningful sexual or dating relationships with age-appropriate persons. Third, he cited respondent's difficulty with sexual impulses and urges, anger, and lack of appreciation for self. Fourth, he testified about respondent's long-standing history of antisocial behavior, showing "clear resistance to supervision," and resistance to personal change. Finally, he addressed relevant protective factors, namely, what respondent had done with respect to sex offender specific treatment and the person's age. He found no protective factors applied to respondent. He noted that respondent was not over 50 or 60 years old and did not have a life-threatening health condition that would reduce the risk of recidivism. He stated that the actuarial scores, dynamic risk factors, and protective factors worked together in forming his opinion about respondent's potential for reoffending. He opined, to a professional degree of certainty, that due to respondent's pedophilia, there was a substantial probability of respondent reoffending. His conclusion was the same as when he first interviewed ...