Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County Nos. 08 CR 80007 Honorable Michael B. McHale, Judge Presiding
JUSTICE PALMER delivered the judgment of the court, with opinion. Justices McBride and Howse concurred in the judgment and opinion.
¶ 1 BACKGROUND
¶ 2 The Petition
¶ 3 On June 9, 2008, the State filed a petition pursuant to the Sexually Violent Persons Commitment Act (Act) (725 ILCS 207/1 to 99 (West 2010)) seeking to have respondent, Johnny Butler, adjudicated a sexually violent person (SVP) and committed to the care and custody of the Department of Human Services (DHS). The petition alleged that respondent had previously been convicted of three separate sexually violent offenses. Specifically, respondent was convicted of the sexually violent offense of attempted rape under Cook County case number 75 I 4184 and was sentenced to a term of 15 years in the Illinois Department of Corrections. Next, respondent was convicted of the sexually violent offenses of rape and deviate sexual assault as well as the offenses of robbery and aggravated kidnapping under Cook County case number 80 C 3720 and was sentenced to a term of 22 years in the Illinois Department of Corrections. Lastly, the petition alleged that respondent was convicted of the sexually violent offense of attempted aggravated criminal sexual assault as well as the offense of aggravated kidnapping under Cook County case number 97 CR 13916 and was sentenced to 22 years in the Illinois Department of Corrections. The petition further alleged that respondent was presently incarcerated pursuant to the sentence imposed on 97 CR 13916 and was scheduled to be released within 90 days of the filing of the petition. Respondent had been evaluated by a clinical psychologist who had diagnosed respondent as suffering from "Paraphilia Not Otherwise Specified, Non-consenting Persons, " and "Personality Disorder Not Otherwise Specified, With Antisocial Features." Finally, the petition alleged that respondent is dangerous to others because said mental disorders make it substantially probable that he will engage in acts of sexual violence.
¶ 4 Pretrial Proceedings
¶ 5 On July 10, 2008, following a hearing in the circuit court of Cook County, the trial court found probable cause to believe that respondent was subject to commitment under the Act. Subsequently, and prior to trial, the trial court heard and ruled upon several motions in limine as well as respondent's proposed voir dire questions. As relevant here, the court granted respondent's "Motion In Limine To Limit Use Of Testimony From Opinion Witnesses Regarding Details Of Respondent's Background." This motion specifically requested that the jury be given limiting instruction Illinois Pattern Jury Instructions, Civil, No. 2.04 (2006) (hereinafter, IPI Civil (2006) No. 2.04) and that the State be precluded from using the details of respondent's prior convictions in closing arguments as substantive evidence. In granting the motion, the court indicated that it would give the limiting instruction to the jury when the evidence was introduced and after closing arguments. The trial court further ruled that when discussing the details of respondent's prior background in closing argument, "you really must preface any details with the fact that the doctor relied upon the details to form their opinion." Additionally, respondent's "Motion In Limine To Preclude All Testimony Regarding The Respondent's Custodial Status At The DHS" specifically requested that the State be precluded from eliciting evidence that there had been a finding of probable cause to believe that the respondent was a sexually violent person. This request was also granted. Lastly, respondent proposed the following voir dire question:
"You will hear evidence that Mr. Butler has been arrested and convicted for sexually violent offenses on three separate occasions. Having heard such testimony, can you be fair and impartial deciding his case?"
The trial court initially granted this request but later revisited the issue sua sponte. The court found that the proposed question too specifically addressed the evidence expected to be adduced at trial. Instead, the court substituted its own voir dire question as follows:
"Knowing that Mr. Butler has already been convicted of a sexually violent offense, can you be fair in determining whether or not he is a sexually violent person in this case?"
¶ 6 Jury Trial Proceedings
¶ 7 At trial, the State presented the testimony of Dr. David Suire and Dr. Jessica Ransom and introduced certified copies of respondent's convictions for the sexually violent offences described above. During the testimony, respondent twice moved for a mistrial on the basis that the State's experts violated the court's rulings by referencing the fact that there had been a finding of probable cause in this case. These motions were denied. Respondent presented no evidence. During the State's closing arguments, respondent objected on several occasions to comments made concerning the details of respondent's sexually violent offenses. These objections were overruled. After the jury was instructed as to the law, respondent again moved for a mistrial arguing that the State violated the trial court's rulings in limine by referring to the details of respondent's crimes as substantive evidence. The motion for mistrial was denied. The jury found respondent to be an SVP.
¶ 8 Commitment
¶ 9 The State immediately moved for an initial commitment order under section 40 of the Act (725 ILCS 207/40 (West 2010)), and further asked the trial court to make a determination that respondent should be committed to a secure facility for secure care, control and treatment with the DHS. In response, respondent asked that the court schedule a dispositional hearing and for the opportunity to be evaluated so that the court may decide what recommendation to make to the DHS. The court declined to hold a separate dispositional hearing and found that it did not lack sufficient evidence to find that respondent would not be conditionally released at that time. As a result, the court committed respondent to a secure facility of the DHS.
¶ 10 ANALYSIS
¶ 11 Respondent appeals, arguing that: (1) the trial court erred by declining to allow prospective jurors to be asked whether they could be fair and impartial knowing that respondent had been convicted of sexually violent offenses on three separate occasions; (2) the State improperly argued basis of opinion testimony concerning the details of respondent's offenses as substantive evidence, his objections thereto were improperly overruled, and the court erred in denying respondent's motion for a mistrial in this regard; (3) the trial court erred by rejecting respondent's proposed jury instruction No. 3 which provided that the State has the burden of proving the allegations in the petition beyond a reasonable doubt and instead accepting the State's proposed jury instruction No. 5 which provided that the State has the burden of proving beyond a reasonable doubt that respondent was an SVP; (4) the trial court erred in denying respondent's motion for mistrial when the State twice violated its order in limine barring testimony that there had been a finding of probable cause to believe that respondent was an SVP; and (5) respondent was denied his statutory right to a dispositional hearing. For the reasons that follow, we affirm.
¶ 12 The Act defines a sexually violent person as an individual who "has been convicted of a sexually violent offense and who is dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence." 725 ILCS 207/5(f) (West 2010). To show that respondent is a sexually violent person, the State is required to prove beyond a reasonable doubt that respondent: (1) has been convicted of a sexually violent offense; (2) has a "mental disorder" as defined by the Act; and that (3) he "is a danger to others because the mental disorder causes a substantial probability that the subject will commit acts of sexual violence." In re Detention of Hardin, 238 Ill.2d 33, 43 (2010) (citing 725 ILCS 207/5(f), 15(b) (West 2006)). The Act defines a "mental disorder" as 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 2010).
¶ 13 The Rejection of Respondents Proposed Voir Dire Question Number 1
¶ 14 The trial court initially agreed to allow respondent to tell prospective jurors that they would hear evidence that he had been arrested and convicted for sexually violent offenses on three separate occasions, and then ask them if having heard that, they could be fair and impartial in deciding this case. Subsequently, the court sua sponte revisited the issue and ruled that this question would not be allowed. Instead, the trial court ruled that it would allow the jurors to be asked with regard to the "index offense" only. By this ruling, respondent claims that the trial court deprived him of his constitutional right to a fair and impartial jury under the sixth and fourteenth amendments to the United States Constitution (U.S. Const., amends. VI, XIV), as well as the Illinois Constitution (Ill. Const. 1970, art. I, § 8).
¶ 15 The purpose of voir dire is to assure the selection of an impartial panel of jurors who are free from bias or prejudice. People v. Terrell, 185 Ill.2d 467, 484 (1998). Our supreme court observed in Terrell that "the primary responsibility of conducting the voir dire examination lies with the trial court and the manner and scope of such examination rests within that court's discretion." Id. Indeed, the trial court possesses great latitude in deciding what questions to ask during voir dire. Id. As it is the duty of the trial court to manage the voir dire, the decision to permit supplemental questions by counsel during voir dire is within the discretion of the trial court. People v. Johnson, 408 Ill.App.3d 157, 164 2010. On review, an abuse of the court's discretion will be found only when the record reveals that the court's conduct " 'thwarted the selection of an impartial jury.' " Terrell, 185 Ill.2d at 484 (quoting People v. Williams, 164 Ill.2d 1, 16 (1994)). Further, to be constitutionally compelled, it is not enough that a voir dire question be helpful; rather, the trial court's failure to ask the question must render the defendant proceedings fundamentally unfair. Id. at 485.
¶ 16 Further, Illinois Supreme Court Rule 234 provides:
"The court shall conduct the voir dire examination of prospective jurors by putting to them questions it thinks appropriate touching upon their qualifications to serve as jurors in the case on trial. The court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate, and shall permit the parties to supplement the examination by such direct inquiry as the court deems proper for a reasonable period of time depending upon the length of examination by the court, the complexity of the case, and the nature and extent of the damages. Questions shall not directly or indirectly concern matters of law or instructions. The court shall acquaint prospective jurors with the general duties and responsibilities of jurors." (Emphasis added.) Ill. S.Ct. R. 234 (eff. May 1, 1997).
¶ 17 In making its ultimate decision in this case, the trial court relied on People v. Buss, 187 Ill.2d 144 (1999), abrogated on other grounds by In re G.O., 191 Ill.2d 37, 46-50 (2000), as well as People v. Jackson, 182 Ill.2d 30 (1998), and found that respondent's proposed question was too factually specific. In Buss, 187 Ill.2d at 178, a capital case, our supreme court focused on four proposed questions dealing with mitigation evidence. Specifically, one of the questions asked, in subparts, "a. Would you be able to consider and give full weight to psychiatric/psychological testimony? b. Would you consider mercy as a possible mitigating factor, based upon the evidence?" (Internal quotation marks omitted.) Id. In upholding the trial court's refusal to allow these questions, the supreme court noted that voir dire is not to be used to indoctrinate jurors or to impanel a jury with a " 'particular predisposition.' " Buss, 187 Ill.2d at 178 (quoting People v. Bowel, 111 Ill.2d 58, 64 (1986)). As to questions regarding psychological evidence or mercy, the court stated that while it is appropriate to ask prospective jurors whether they will follow the law, the purpose of voir dire is not to ascertain prospective jurors' opinions with respect to evidence to be presented at trial. Id. at 179-80 (citing People v. Howard, 147 Ill.2d 103, 135-36 (1991) (upholding the trial court's refusal to ask prospective jurors their attitudes toward guns)).
¶ 18 In Jackson, 182 Ill.2d at 62, another capital case, our supreme court upheld the trial court's refusal to ask prospective jurors whether they would always vote for the death penalty if certain statutory aggravating factors were present. Specifically, the defendant therein requested that prospective jurors be asked if they would automatically vote to impose the death penalty in all murder cases where more than one person was killed and if they would automatically vote to impose the death penalty in all murder cases where a child is killed. Id. at 61. Relying on its previous decisions, the supreme court noted that conducting inquiry into whether a potential juror would vote to impose the death penalty, given a particular set of circumstances, is not required by Morgan v. Illinois, 504 U.S. 719 (1992). Jackson, 182 Ill.2d at 60 (citing People v. Hope, 168 Ill.2d 1 (1995) and People v. Brown, 172 Ill.2d 1 (1996)); see also Morgan, 504 U.S. at 729 (holding that a juror who would vote to impose the death penalty in every case is subject to dismissal for cause).
¶ 19 Respondent attempts to distinguish Buss and Jackson by arguing that asking whether a jury member is biased against a person convicted of multiple sexually violent crimes does not introduce specific evidence, does not introduce mitigation evidence and does not introduce a theory of defense. Respondent, while admitting that a court can deny proposed questions that are "too fact specific, " further argues that it can err by asking the venire a "broad inquiry" that fails "to call attention to specific matters which might lead the jurors to display disqualifying attitudes and preoccupations about the law." In support of this argument, respondent relies upon People v. Gregg, 315 Ill.App.3d 59 (2000), People v. Strain, 194 Ill.2d 467 (2000), and People v. Murawski, 2 Ill.2d 143 (1954).
¶ 20 In Gregg, 315 Ill.App.3d at 73, we found reversible error in the trial court's refusal to allow prospective jurors to be informed of and questioned with regard to the defendant's burden of proof and standard of proof imposed by law when the insanity defense is raised. In Strain, 194 Ill.2d at 481, our supreme court affirmed this court's reversal of the defendant's conviction upon a finding that the trial court erroneously refused to propose certain questions to prospective jurors concerning the area of bias or prejudice toward street gangs. Lastly, in Murawski, 2 Ill.2d at 147, an older case involving murder by abortion and illegal abortion, our supreme court found error, but not reversible error, where there trial court refused to allow prospective jurors to be questioned with regard to their views on abortion.
¶ 21 We cannot agree with respondent's attempt to distinguish Buss and Jackson. First, we disagree that the proposed question at issue here is not an effort to put forth specific evidence before the venire to gauge their reaction. To the contrary, the proposed question asks prospective jurors their reaction to specific evidence that the parties knew would be introduced at trial, that respondent has been convicted of sexually violent offenses on three separate occasions. We note that in his attempt to avoid the application of Buss here, respondent quotes the trial court in saying that, "Buss, of course, is not directly on point." This quote is taken entirely out of context and must be considered along with the trial court's comments in their entirety to understand its analysis. What the court actually said was as follows:
"This is a SVP case. This law is still a fairly new law. Case law is being made practically every month on these things, and I don't believe there is a case directly on point regarding this issue.
Buss, of course, is not directly on point, but I feel the analysis and the legal rationale is the same. The venire should not be asked about specific facts or evidence during voir dire. And that is what it says it Buss.
Specifically Buss addresses some questions -- I understand it was a death penalty case. Nevertheless, this court feels the rationale is the case in that the questions that were proposed were too specific regarding would you impose the death penalty in any case in which there was a child or a kidnapping in the death of the child. And the court ultimately, that being the Supreme Court of Illinois, ultimately said that those questions were not appropriate."
We agree with the trial court's analysis.
¶ 22 We do not find the holdings of Gregg, Strain, and Murawski to require a different result. In Gregg, 315 Ill.App.3d at 72-73, we found that as the insanity defense remained a subject of intense controversy and was known to be the subject of bias and prejudice, it was important for prospective jurors to be informed of and questioned with regard to the defendant's burden and standard of proof when the insanity defense is raised. Our decision was cast as an effort to effectuate the principles established in People v. Zehr, 103 Ill.2d 472 (1984), and recognized that a general or broad statement of law that the burden of proof in a criminal case is beyond a reasonable doubt did not adequately inform jurors of the law when the insanity defense is raised. Gregg, 315 Ill.App.3d at 72. Our holding was specifically limited, however, to require that prospective jurors be informed of the defendant's burden of proof and the standard of proof imposed by law when the insanity defense is raised and we limited this requirement to insanity cases where defense counsel requests that prospective jurors be so informed. Id. at 73. In Strain, 194 Ill.2d at 477, our supreme court acknowledged that it had previously recognized that street gangs are regarded with considerable disfavor by other segments of our society and that, particularly in metropolitan areas, there may be strong prejudice against street gangs. As a result, the supreme court found that, in a case where gang-related testimony was pervasive, the defendant must be afforded an opportunity to question prospective jurors, either directly or through questions submitted to the trial court, concerning gang bias. Id. at 480. Lastly, in Murawski, 2 Ill.2d at 147, the court held that due to the controversial subject of abortion, prospective jurors should have been questioned about any bias or prejudice in that regard.
¶ 23 These cases do not hold that when the subject matter is controversial, jurors must be questioned with regard to all of the details of the subject that are expected to be admitted into evidence. Rather, in each case, the reviewing court found that jurors should be questioned with regard to any bias or prejudice concerning the controversial subject matter itself. It would be an unwarranted extension of Gregg to argue that when the insanity defense is raised, jurors should be specifically asked about their feelings concerning paraphilia or personality disorders with antisocial features. Strain did not hold that jurors must be questioned with regard to particular gangs in particular areas, or particular gang rankings. Murawski only holds that prospective jurors need to be questioned on the general subject of abortion.
¶ 24 Here, the trial court refused to allow voir dire to inform prospective jurors that the respondent had previously been convicted of three separate sexually violent offenses. The trial court opted instead to allow a more general inquiry concerning the fact that he had previously been convicted of a sexually violent offense. We find that the trial court here struck the appropriate balance between informing the jurors of a particularly troubling aspect of the expected evidence, sexually violent offenses, and ascertaining any existing bias or prejudice in regard thereto versus the risk of being too specific and thus giving respondent the opportunity to inappropriately prequalify the jurors with regard to specific evidence. We find that this more general inquiry was sufficient to ascertain any existing bias or prejudice for sexually violent offenders that would preclude a juror from being fair and impartial. In fact, this inquiry was quite successful in that regard, causing the dismissal of over 40% of the venire. Respondent's allegation that the venire contained persons who did not respond to this question concerning sexually violent offenses generally, but would have responded to a question concerning three such offenses, is wholly conclusory and unsupported by the record or any precedent. The record does not reveal the court's exercise of discretion here thwarted the selection of an impartial jury. The court's ruling rejecting respondent's proposed voir dire question No. 1 was not an abuse of discretion.
¶ 25 We find further support for the trial court's ruling in Supreme Court Rule 234. As noted above, Rule 234 provides in part that: "Questions shall not directly or indirectly concern matters of law or instructions." Ill. S.Ct. R. 234 (eff. May 1, 1997). At respondent's request the jury was given a modified version of IPI Civil (2006) No. 2.04 and was instructed as follows:
"I have allowed the witnesses to testify in part to police reports, Department of Corrections records, Department of Human Services records, psychological evaluations, psychological articles and statements other than those made by the Respondent to the witnesses that have not been admitted into evidence. This testimony was allowed for a limited purpose. It was allowed so that the witnesses may tell you what he or she relied on to form his or her opinion. The material being referred to is not evidence in this case and may not be considered by you as evidence. You may consider the material for the purpose of deciding what weight, if any, you will give the opinions testified to by these witnesses."
The jury therefore was instructed that as a matter of law they were to consider evidence of sexually violent offenses for a limited purpose.
¶ 26 In People v. Brandon, 157 Ill.App.3d 835, 842 (1987), this court upheld the trial court's refusal to ask prospective jurors if they would be prejudiced against the defendant because of prior felony convictions. In making this decision, we relied in part on Rule 234. As the proposed question was clearly to be covered by limiting instruction Illinois Pattern Jury Instructions, Criminal, No. 3.13 (2d ed. 1981), we found that it was improper. In so finding, we relied on People v. Lexow, 23 Ill.2d 541, 543 (1962), where our supreme court found no abuse of discretion in the trial court's refusal to allow inquiry of a prospective juror concerning defendant's prior conviction. In that case, at the close of all the evidence, the trial court instructed the jury with regard to the limited use of such evidence. Lexow, 23 Ill.2d at 544. It was also noted that the trial judge ruled the question was improper on the basis that a prospective juror could not be expected to answer such a question before being instructed as to the limited use of proof of a prior conviction. Id. The record here reflects that the trial court had similar concerns when it stated:
"One other aspect of this too is, just as an aside, but I still think it's relevant, if you ask the juror, prospective juror, can you be fair knowing that Mr. Butler has been convicted of three sexually violent offenses, jurors won't know the law unless they're a criminal defense attorney or prosecutor, but typically our jurors, prospective jurors, do not understand the law.
A juror may believe that they have to answer that question 'I can't be fair because they're thinking if he's done it three times, that leads to propensity. Well, propensity under the law is something ...