Appeal from Circuit Court of Sangamon County No. 10CF245 Honorable Peter C. Cavanagh, Judge Presiding.
The opinion of the court was delivered by: Justice Appleton
4th District Appellate
JUSTICE APPLETON delivered the judgment of the court, with opinion. Presiding Justice Steigmann and Justice Knecht concurred in the judgment and opinion.
¶ 1 Respondent, Anthony L. Hunter, was charged with aggravated criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 2008)) and criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2008)). While those criminal charges were pending, the State instituted a civil commitment proceeding, pursuant to Illinois's Sexually Dangerous Persons Act (Act) (725 ILCS 205/0.01 to 12 (West 2008)). After a jury trial, the circuit court declared respondent a sexually dangerous person and ordered his commitment. Respondent's posttrial motion was denied, and he appealed.
¶ 2 Respondent argues his commitment as a sexually dangerous person should be reversed because (1) the Act is unconstitutional, on its face and as applied, as violative of the confrontational clause, or in the alternative, (2) the State's evidence was insufficient to satisfy the demonstrated-propensities requirement of the Act. We find no constitutional violation and affirm on both grounds.
¶ 4 On May 13, 2010, respondent was charged by information with one count of aggravated criminal sexual assault (720 ILCS 5/12-14(a)(1) (West 2008)) and one count of criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2008)) for physically attacking Emma in respondent's home and penetrating her vagina with his fingers on April 20, 2010. The criminal charges were pending when, on May 19, 2010, the State filed a petition to declare respondent a sexually dangerous person. The State requested the appointment of two psychiatrists to examine respondent. Pursuant to the circuit court's order, respondent was subsequently examined by Drs. Terry Killian and Lawrence Jeckel. After examining respondent, both concluded respondent qualified as a sexually dangerous person as defined in the Act.
¶ 5 A hearing was conducted on March 7 and 8, 2012. At the hearing, the State presented the testimony of Drs. Killian and Jeckel, both of whom testified that respondent was a sexually dangerous person. Dr. Killian testified he was employed as a forensic psychiatrist and, in that capacity, he had evaluated around 150 people to determine whether they were sexually dangerous. When conducting the initial evaluations, he has found the person to be sexually dangerous in approximately 60% of the cases. The circuit court accepted Dr. Killian as an expert in the field of psychiatry.
¶ 6 Dr. Killian testified he conducted respondent's evaluation on August 26, 2010. The prosecutor had forwarded over 100 pages of documents to be reviewed. A social worker in Dr. Killian's office reviewed the records and prepared a summary for the doctor's use during the interview with respondent. Included in the documents was information about particular incidents of respondent's past sexual misconduct. Dr. Killian testified it was "normal and routine" and "essential" for psychiatrists to rely on police reports of prior criminal conduct in performing sexually-dangerous-person evaluations. He said he takes "all the information that is available to [him], which includes the police reports and sometimes other documents, could be [Illinois Department of Children and Family Services] reports, and the information from evaluating, from interviewing the defendant, as well as any other documents [he has], mental health records, other evaluations that have been done, take all of that, put it together to try to make the best sense of how everything fits together."
¶ 7 The first of respondent's prior sexual incidents occurred in 1987 and involved a victim named Sheri. Dr. Killian noted that respondent pleaded guilty to a reduced charge of criminal sexual abuse related to this incident. A police report revealed that Sheri had described the incident as a violent rape. She had been helping respondent move to a different home when he grabbed her, dragged her into the bedroom, and dug his fingernails into her mouth to keep her quiet while he raped her. The police had observed injuries consistent with her version of the event. Respondent had given police a very different version, where he had portrayed himself as the victim. He said Sheri had asked him to have sex with her, and then " 'for no reason,' " she assaulted him. In his interview, respondent told Dr. Killian he had no memory of the incident or of a person named Sheri.
¶ 8 Approximately 16 months after that incident, in 1989, respondent, then age 23, was involved in another incident-this one involving a victim named Laticia, age 15. Laticia said she had known respondent and that he had been at her home on the day of the incident. She was asleep, but she awakened to find respondent on top of her. He overpowered her and raped her. Dr. Killian said this case had been dismissed for unknown reasons.
¶ 9 In 1998, respondent was involved in another incident wherein he had been repeatedly asking an acquaintance named Rebecca, age 21, to remove her clothes. He offered her money to have sex with him and placed his hand on her upper thigh. Rebecca was respondent's friend's roommate.
¶ 10 In 2002, respondent had sexually assaulted his niece by marriage, Ashley, who was 13 years old. Respondent was copying movies to sell and Ashley indicated she wanted some for herself. Respondent told her the only way she could have copies was to sleep with him. She refused. He then grabbed her, pulled off her clothes, raped her, and told her not to tell anyone. Respondent pleaded guilty because the deoxyribonucleic acid (DNA) evidence against him was "definitive." His semen was found in her vagina, and the medical examination indicated this was her first vaginal sexual experience. Respondent told the police the girl had begged him to have sex with her and he finally gave in.
¶ 11 During Dr. Killian's interview with respondent, respondent said he remembered the incident with Ashley, while he had not remembered anything about the three previous incidents. He said Ashley had wanted a copy of a movie and he told her " 'Ass, grass, or cash. Nobody rides for free.' " He said she agreed to have sex with him in exchange for a copy of the movie. Respondent pleaded guilty to aggravated criminal sexual assault.
¶ 12 Finally, in 2010, respondent was involved in the incident leading to the current charges. The victim, Emma, was respondent's "personal assistant." Respondent owed her money and she had gone to his home to collect. When she arrived, he grabbed her, pulled her into the bedroom, removed her clothes, and raped her. He told the police he was angry because Emma had cashed a check that he had written for $7,000 that was not to be cashed. The check was written only to teach Emma how to write a check for over $1,000. Respondent threatened to call the police on her for cashing this fraudulent check. According to respondent, Emma accused him of rape in response to his threat of turning her in on cashing a fraudulent check.
¶ 13 Dr. Killian also considered (1) respondent's non-sexual criminal history, which included "many arrests," and (2) three actuarial instruments in evaluating and predicting respondent's risk of reoffending. (Respondent admitted he had been arrested for domestic battery more than 10 times.) The first of the actuarial instruments used was the Static 99. Respondent scored a six, which indicated a high risk of reoffending. The second instrument was the Rapid Risk Assessment for Sex Offender Recidivism (RRASOR). Respondent scored a three, which placed him in the category of having a 36.9% likelihood over a 10-year period of reoffending. The third instrument was the Minnesota Sex Offender Screening Tool (MnSOST-R). Respondent scored a 10 (Dr. Killian corrected his testimony on cross-examination to reveal that respondent had actually scored a 12), which placed him in the high-risk category.
¶ 14 In addition to the actuarial testing, Dr. Killian also considered respondent's level of antisocial behavior in determining recidivism. During his interview with respondent, Dr. Killian noted that respondent mumbled "very badly," as if he had suffered a stroke. Then, after approximately 10 minutes, respondent began speaking more clearly. The doctor believed respondent was faking a speech problem to present himself as a weakened or disabled individual.
¶ 15 Based upon Dr. Killian's observations, the review of the materials, and the results of the actuarial instruments, in his opinion, to a reasonable degree of medical certainty, respondent suffers from antisocial personality disorder, a mental disorder where he repeatedly violates other people's rights without remorse. This diagnosis, coupled with respondent's "strong tendencies to commit sex offenses," predisposes him to the commission of sex offenses. In Dr. Killian's opinion, respondent's mental disorder has existed for at least a year prior to the filing of the petition. Within a reasonable degree of psychiatric certainty, Dr. Killian opined that respondent's mental disorder is coupled with a propensity to commit sex offenses. He also opined that, to a reasonable degree of psychiatric certainty, it is substantially probable that respondent will engage in the commission of sex offenses in the future if he is not confined. Finally, Dr. Killian opined that, to a reasonable degree of psychiatric certainty, respondent is a sexually dangerous person.
¶ 16 Next, Dr. Jeckel testified as the State's second expert. He said he operates a general practice in Champaign, Illinois, where two-thirds of his practice consists of general psychiatry and one-third consists of forensic psychiatry. This case was his thirty-fifth sexually-dangerous-person case. Like Dr. Killian, Dr. Jeckel reviewed the records related to respondent's criminal, psychiatric, substance-abuse, and incarceration history. He acknowledged it was this "type of information that psychiatrists would normally rely upon to do this kind of evaluation." ...