Appeal from the Circuit Court of Cook County No. 07 CR 80007 The Honorable Michael McHale Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Lavin
PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justice Epstein concurred in the judgment and opinion.
Justice Pucinski specially concurred, with opinion.
¶ 1 Following a jury trial, respondent Reginald Dodge was found to be a sexually violent person under the Sexually Violent Persons Commitment Act (the Act) (725 ILCS 207/1 et seq. (West 2006)). The trial court immediately conducted a "dispositional hearing" and ordered that respondent be committed to institutional care in a secure facility before the parties had been given the opportunity to present an argument or evidence as to the appropriate disposition. On appeal, respondent challenges numerous instances of counsel's allegedly ineffective assistance both at trial and with regard to the dispositional hearing. We affirm the judgment finding respondent to be a sexually violent person. We also affirm the dispositional order committing respondent to institutional care in a secure facility, albeit somewhat reluctantly given the superficial hearing that occurred in this case.
¶ 3 In 2007, the State filed a petition to commit respondent to the Department of Human
Services (DHS) as a sexually violent person. The State alleged that (1) respondent was serving a 50-year prison term for rape and deviant sexual assault; (2) he suffered from a mental disorder, specifically, paraphilia toward non-consenting persons; and (3) respondent's mental disorder made it substantially probable that he would engage in future acts of sexual violence.
¶ 4 Before trial, the State filed a motion in limine seeking, among other things, an order precluding respondent from placing any information regarding the potential commitment options before the jury. The State argued that such information would be improper and tantamount to commenting on sentencing during a criminal trial. Respondent's attorney objected, stating that "there will be cross[-]examination of the experts regarding their opinion as to what is required for his commitment, whether or not it should be in a secure facility." The trial court granted the State's motion, finding that such information "is for a dispositional hearing," rather than trial.
¶ 5 At trial, the State presented the expert testimony of Dr. John
Arroyo, a licensed psychologist, who testified that the Illinois
Department of Corrections (IDOC) maintained a list of sex offenders
who were subject to parole or discharge. Those individuals were
screened to determine whether they were "okay" to be released or
whether they were in the 2% of inmates who required further
evaluation. Dr. Arroyo evaluated respondent to
determine if he was a candidate for commitment under the
Act. After reviewing respondent's master file, Dr. Arroyo interviewed
respondent on November 30, 2010, and prepared a report. In forming an
opinion, he considered respondent's criminal history.
¶ 6 Respondent committed his most recent sexually violent offense in 1982 (case No. 82 CR 9737) while on parole for a prior sex offense. Respondent, then 27 years old, entered the victim's home through a balcony while armed with a knife and forced the victim to engage in oral, anal and vaginal sex. Respondent believed "she enjoyed it a little." Respondent was convicted of rape, deviant sexual assault, armed robbery and home invasion. In addition, respondent was convicted of attempted residential burglary (case No. 82 CR 9766) as well as residential burglary (case No. 82 CR 9765) in 1982. In the latter case, the victim shouted upon finding respondent standing in his kitchen. Respondent fled, leaving behind a knife, pornographic magazines and a dildo.
¶ 7 In 1974, respondent, then 19 years old, was convicted of rape
(case No. 74 CR 6032) when he forced a group of college women into a
bedroom at gunpoint and assaulted one woman in front of the others.
During his interview, respondent said that he picked the prettiest
woman and believed that the women "were out for a good time" because
they were wearing shorts and bikinis. Respondent also stated, however,
that he was not attempting to justify his behavior and it would not
have made a difference if they were dressed as goblins. Respondent
believed that no one was hurt. In addition, respondent was convicted
of another rape and burglary in 1974 (case No. 74 CR 6033). There,
respondent, who had a gun, woke the victim and forced her to have sex
while two other
people ransacked her home. In a third case in 1974,
respondent was convicted of burglary, armed robbery and attempted rape
(case No. 75 CR 2176). Respondent entered through a window, took the
victim's gun and threatened to rape her but she persuaded him to
leave. Furthermore, respondent had an additional theft case in 1974.
Respondent also reported that when he was 14 years old, he was stabbed
while raping a woman and was surprised at her reaction.
¶ 8 Dr. Arroyo testified that he discounted the possibility that the rapes just happened to occur while respondent was breaking into the homes because respondent conducted the rapes prior to taking items. Dr. Arroyo also considered respondent's non-sexual criminal history, including one offense in which he shot at a federal officer. In addition, respondent had more than 125 disciplinary tickets in prison, including tickets for possessing shanks and blocking locks with razor blades. Respondent also failed to successfully complete a prior probation sentence. Furthermore, the IDOC had offered respondent sex offender treatment but he declined. Respondent stated that the authorities had eliminated his sexual feelings toward women by locking him up for so long and that he "didn't feel much sexually anymore." He was currently in the DHS treatment facility for sex offenders but declined to receive treatment there as well, preferring to wait for the outcome of his trial before deciding if he would participate in treatment.
¶ 9 Dr. Arroyo testified that he considered the Diagnostic and
Statistical Manual of Mental
Disorders (DSM-IV-TR) in support of his conclusion that respondent had
"paraphilia not otherwise specified, non-consent and antisocial
personality disorder." Dr. Arroyo
explained that paraphilia is a sexual fixation involving
recurrent, intense sexually arousing fantasy, sexual urges or
behaviors involving non-consenting persons for a period of at least six
months. The second criterion of paraphilia was that the urges or
fantasies cause clinically significant distress or impairment in
social functioning. In respondent's case, he had been engaging in the
aforementioned sexual urges and fantasies for years and continued to
engage in sexually violent conduct despite having been sanctioned for
it. In addition, Dr. Arroyo explained that antisocial personality
disorder involved, among other things, a persistent pattern of
violating others' rights since age 15 and for a period of years. Dr.
Arroyo observed that respondent had failed to conform to social norms
regarding lawful behavior, recklessly disregarded the safety of others
and lacked remorse, as indicated by rationalizing or indifference to
his mistreatment of others. Specifically, respondent had stated that
one victim somewhat enjoyed the rape and respondent did not believe he
had harmed anyone with respect to the incident with the college
students. Dr. Arroyo also stated that although antisocial personality
disorder was not sexual in nature, one illness exacerbated the other.
Furthermore, Dr. Arroyo lacked sufficient information to form an
opinion as to potential substance abuse. Dr. Arroyo opined that
respondent's mental disorders affected his emotional or volitional
capacity and predisposed him to engage in future acts of sexual
¶ 10 Dr. Arroyo examined actuarial studies in determining respondent's
likelihood of committing another sex offense. According to Static-99R,
respondent was high risk because he had chosen to engage in offending
behavior despite having been sanctioned
for it, and declined offers to be treated. Respondent
was also in the high risk category according to the Minnesota Sex
Offender Screen Tool Revised (MnSOST-R). In addition, respondent
scored in the 83rd percentile as compared to other inmates in the Hare
Psychopathy Check List Revised (PCLR), which examines antisocial
behavior based on a respondent's current state of mind. Dr. Arroyo
also considered that respondent had committed offenses both as a
juvenile and as an adult, had violated conditional release and had
committed a new offense while under community supervision.
Furthermore, although age is a protective factor that tends to decease
risk, respondent was 56 years old, relatively young and able-bodied,
and still able to reoffend. Similarly, although treatment was a
protective factor, respondent had declined treatment. Dr. Arroyo
opined that respondent was substantially probable to engage in future
acts of sexual violence due to his mental disorders. Dr. Arroyo
testified that by substantially probable, he meant "[m]uch more likely
¶ 11 On cross-examination, Dr. Arroyo testified that respondent was not of significant age, which would be 15 years or less of remaining life expectancy. Dr. Arroyo also testified, however, that he did not know respondent's life expectancy and that sex offenders over the age of 60 were found to reoffend at the lowest rate. Dr. Arroyo further testified that while in prison, respondent did not receive tickets for sexual incidents, alcohol use or drug use.
¶ 12 Dr. Edward Smith, a clinical psychologist, testified that he
conducted sexually violent persons evaluations through a contract with
DHS. Dr. Smith reviewed respondent's
master file, interviewed him, administered psychological
testing and wrote reports. In forming his opinion, Dr. Smith
considered respondent's criminal history. Dr. Smith's recitation of
respondent's criminal offenses substantially corroborated Dr. Arroyo's
testimony but Dr. Smith added that in case number 74 CR 6033,
respondent reported being under the influence of drugs and alcohol
during the offense. Dr. Smith also added that in case number 75 CR
2176, respondent told the victim that someone had paid him to rape
her. When the victim said she would pay respondent the same amount not
to rape her, he said he would return the next day to let her know who
was paying him to rape her. In addition, as to case number 82 CR 9737,
respondent believed his 50-year sentence was unfair because the
offense was not heinous.
¶ 13 Dr. Smith testified that respondent talked about his sexual offenses in a very matter of fact manner with little emotional expression. He also used statements that minimized the significance of his crimes, stating that he had "only" vaginally raped his victim. In addition, he discussed the acts as if they were consensual. During most encounters, he was armed and broke into an individual's residence. Dr. Smith also considered respondent's non-sexual crimes, which included shooting at a federal officer, and his behavior in prison. Dr. Smith substantially corroborated Dr. Arroyo's testimony regarding respondent's infractions in prison and added that he was sentenced to segregation time for telling a female staff member that he loved her. Respondent declined officers of treatment while in prison because he believed he did not need it. He also declined treatment at DHS.
¶ 14 Respondent's answers to the Minnesota Multiphasic Sex Inventory (MMPI-2) revealed that he minimized the significance of past events by using different justifications or excuses for the offenses he committed, reflecting that he felt little remorse but knew his conduct was wrong. Respondent stated that he was not as interested in sex as most men but did have basic sexual urges. In diagnosing respondent, Dr. Smith consulted the DSM-IV-TR. He diagnosed respondent with paraphilia involving attraction to non-consenting females, antisocial personality disorder, alcohol abuse and cannabis abuse. As to the paraphilia diagnosis, Dr. Smith observed that respondent committed multiple rapes over a period of years, typically with the use of a weapon. In support of his finding that respondent had antisocial personality disorder, Dr. Smith noted that respondent had engaged in criminal activity from an early age and had acknowledged engaging in animal torture as an adolescent. In addition, paraphilia and antisocial personality disorder affected respondent's emotional or volitional capacity and predisposed him to engage in acts of sexual violence. Respondent's substance abuse also led to poor decision making.
¶ 15 To determine respondent's likelihood of committing sexual offenses in the future, Dr.
Smith considered the Static-99 and Static-99R. The two tests
considered essentially the same factors but the latter test also
considered age. Even with a one-point reduction based on his age,
respondent was in the high risk category according to Static-99R. In
addition, respondent fell within the high risk category of the
MnSOST-R. Furthermore, an individual's attitude toward sex crimes was
a dynamic factor that could be changed with treatment and treatment
was also a protective factor that could lower risk, but
respondent had refused treatment. Although some research
suggested that the likelihood of reoffending begins to diminish at age
60, other studies showed that the occurrence of sexual offenses did
not necessarily decline with age. Dr. Smith opined that respondent had
engaged in sexually violent offenses, suffered from paraphilia and
antisocial personality disorder, and was dangerous because his mental
disorder made it substantially probable that he would engage in future
acts of sexual violence. By substantially probable, Dr. Smith meant,
"[m]ore likely than not."
¶ 16 On cross-examination, Dr. Smith testified that the diagnosis of paraphilia was based on respondent's history before 1982 and acknowledged that respondent had not engaged in sexual misconduct in prison. Dr. Smith testified that although the recurrence of sexual offenses diminished after age 60, it would be inaccurate to say that no one committed an offense after that age. Dr. Smith further testified, however, that in the very small sample forming the basis of comparison in Static-99R, no sex offenders over 60 years old were brought to the authorities' attention.
¶ 17 Following Dr. Smith's testimony, the State published before the jury certified copies of several of respondents' convictions (case Nos. 82 CR 9737, 74 CR 6032, 74 CR 6033 and 75 CR 2176) and then rested. Respondent rested without testifying or presenting evidence. The jury then found respondent to be a sexually violent person. The court immediately entered an order committing respondent to institutional care in a secure facility, rather than conditional release, before the parties were given a meaningful opportunity to present any arguments or evidence. Respondent now appeals.
¶ 18 II. COUNSEL'S PERFORMANCE AT TRIAL
¶ 19 On appeal, respondent first asserts that counsel was ineffective at the trial which led to the jury's finding that respondent is a sexually violent person. The Act permits the State to extend a criminal defendant's incarceration beyond the time that he would otherwise be subject to release if that defendant is found to be "sexually violent." In re Detention of Samuelson, 189 Ill. 2d 548, 552 (2000). At trial, the State must prove beyond a reasonable doubt that the respondent is a "sexually violent person" because (1) the respondent has been convicted of a sexually violent offense; (2) the respondent suffers from a mental disorder; and (3) he is dangerous because his mental disorder makes it substantially probable that he will commit future acts of sexual violence. 725 ILCS 207/5(f), 15, 35(d)(2) (West 2006). In addition, a "mental disorder" is "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes a person to engage in acts of sexual violence." 725 ILCS 207/5(b) (West 2006).
¶ 20 Proceedings governing a petition alleging that a defendant is a
sexually violent person are civil in nature. Samuelson, 189 Ill. 2d at
552; 725 ILCS 207/20 (West 2006). Nonetheless, the Act provides a
respondent with the right to the effective assistance of counsel as
provided in Strickland v. Washington, 466 U.S. 668, 686 (1984). People
v. Rainey, 325 Ill. App. 3d 573, 585-86 (2001); 725 ILCS 207/25(c)(1)
(West 2006). A successful ineffective assistance of counsel claim
requires the claimant to prove that counsel's conduct fell below an
objective standard of reasonableness and a reasonable probability
exists that but for counsel's unprofessional conduct, the outcome
been different. In re Detention of Tittlebach, 324 Ill.
App. 3d 6, 10 (2001). In addition, both prongs of the test must be
satisfied in order for a respondent to prevail. In re Commitment of
Bushong, 351 Ill. App. 3d 807, 817 (2004); In re Detention of Erbe,
Ill. App. 3d 350, 362 (2003). Furthermore, a respondent must overcome the strong presumption that the challenged action or inaction resulted from sound trial strategy, rather than incompetence, and every effort should be made to eliminate the distorting effects of hindsight. Erbe, 344 Ill. App. 3d at 362. Trial counsel "is not required to manufacture a ...