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People v. Howe

Court of Appeals of Illinois, Fourth District

November 24, 2014

JAMES G. HOWE, Defendant-Appellant

Appeal from Circuit Court of Scott County. No. 12CF9. Honorable John Schmidt, Judge Presiding.



The trial court's finding that defendant was a sexually dangerous person was upheld on appeal over defendant's contentions that the trial court erred in denying his motion for a mistrial based on the Brady violation that occurred when a statement of a prosecution witness that was favorable to defendant was not disclosed until the third day of defendant's trial and prejudiced him by preventing the experts from reviewing the discrepancy in the witness's statements and that the evidence did not support the finding that he was a sexually dangerous person, since there was no Brady violation where defendant was given wide latitude in examining the witness and the deputy who took the statement and the trial court had the witness's explanation for the discrepancy between her statements and the reason for her delayed disclosure before it prior to making its decision, and the evidence, considered in the light most favorable to the State, including the testimony of two psychiatrists, established beyond a reasonable doubt that defendant suffered from a mental disorder for more than one year prior to the filing of the petition that warranted confinement under the Act.

William A. Davis II (argued), of Brown, Hay & Stephens, LLP, of Springfield, for appellant.

Michael Hill, State's Attorney, of Winchester (Patrick Delfino, David J. Robinson, and James C. Majors (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE TURNER delivered the judgment of the court, with opinion. Presiding Justice Appleton and Justice Knecht concurred in the judgment and opinion.


Page 776


[¶1] In January 2013, the State filed a petition to have defendant, James G. Howe, declared a sexually dangerous person. In October 2013, the trial court found defendant to be a sexually dangerous

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person. In November 2013, defendant filed a posttrial motion, which the court denied.

[¶2] On appeal, defendant argues the trial court erred in (1) denying his motion for mistrial and (2) finding him to be a sexually dangerous person. We affirm.


[¶4] In July 2012, the State filed an amended information, charging defendant with the offenses of aggravated criminal sexual assault (counts I and II) (720 ILCS 5/11-1.30(a)(4) (West 2010)) and domestic battery (count III) (720 ILCS 5/12-3.2(a)(2) (West 2010)) of Lisa Howe, now known as Lisa Riffey, on or about December 11, 2011. In October 2012, the State filed a petition to proceed and for evaluations under the Sexually Dangerous Persons Act (Act) (725 ILCS 205/0.01 to 12 (West 2012)). Examination reports were filed by two psychiatrists, Dr. Terry Killian and Dr. Lawrence Jeckel.

[¶5] In January 2013, the State filed a petition to have defendant declared a sexually dangerous person. The State alleged defendant had been examined by Drs. Killian and Jeckel, both of whom concluded to a reasonable degree of medical and psychiatric certainty that defendant satisfied the criteria for being declared a sexually dangerous person.

[¶6] In April 2013, defendant filed a motion for appointment of a defense expert. In June 2013, the trial court granted the motion and, pursuant to defense counsel's suggestion, ordered Dr. Kirk Witherspoon, a licensed clinical psychologist, to conduct an evaluation.

[¶7] In October 2013, defendant's bench trial on the petition commenced. Dr. Killian's report indicated he reviewed 670 pages of documents, including police reports, and interviewed defendant for just under two hours. Killian also reviewed defendant's criminal history, including an incident in 2002, where it was alleged the 22-year-old defendant raped K.F., a 16-year-old girl. Defendant denied having sex with her, but his deoxyribonucleic acid (DNA) evidence matched that found on the victim. Defendant pleaded guilty to criminal sexual abuse.

[¶8] Another incident occurred in 2005 with S.B. At a New Year's Eve party, S.B. stated she fell asleep in a recliner. When she awoke, her legs were spread and her pants and underwear were pulled down. She also noticed a discharge coming from her vaginal area and suspected defendant. She went to the police and then the hospital. DNA evidence matched defendant's. Dr. Killian stated defendant admitted he had sex with S.B. but claimed it was consensual and " largely initiated by her." No charges were filed.

[¶9] In December 2011, an incident allegedly occurred between defendant and his estranged wife, Lisa Riffey. Dr. Killian stated Riffey claimed defendant raped her and threatened to harm her. Defendant denied having raped her. He claimed she had performed oral sex on him and then they had consensual sex. While he was taking a shower, he overheard her " talking hatefully." She called the police, which defendant claimed was in response to his filing for divorce. Killian reported that during the investigation of the December 2011 offense, Riffey provided a statement in June 2012 that defendant sexually assaulted her in April 2011.

[¶10] Dr. Killian administered the Minnesota Sex Offender Screening Tool-revised (MnSOST-R), and defendant's score of four placed him in the category of moderate risk. On the Static 99 test, defendant also achieved a score of four, placing him in the moderate risk category. In his report, Killian stated " the only disorder

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that I can give Mr. Howe with any reasonable degree of psychiatric certainty is probable personality disorder with antisocial features." Killian also found defendant has " certainly demonstrated propensities toward acts of sexual assault as part of the wider pattern of his antisocial behavior."

[¶11] In his testimony, Dr. Killian stated defendant has a " pretty strong history of substance dependence" with multiple substances and " very likely a personality disorder with antisocial features." Based on a reasonable degree of medical and psychiatric certainty, Killian opined defendant was " substantially likely to reoffend sexually, as well as non-sexually, if not confined."

[¶12] On cross-examination, Dr. Killian testified that his opinion would " likely" be different if the alleged offenses, i.e., those other than the one involving K.F., were untrue, as it would " lower the risk" in his mind. When defense counsel asked Killian about his report containing " no firm diagnosis of any mental disorder," Killian responded as follows:

" I'm thinking about the phrasing of the question. If I can say not a definitive in that, as I explained earlier, everything that I see in Mr. Howe suggests very strongly antisocial personality disorder. The DSM-IV [Diagnostic and Statistical Manual of the American Psychiatric Association, fourth edition] criteria specifically require a history of conduct disorder or behavior that would warrant a diagnosis, conduct disorder before the age of 15 and I don't specifically have that. So to make a definitive DSM-IV diagnosis of antisocial personality disorder, I can't with the information I have. So what I wrote down is probable personality disorder with antisocial features. So it's not definitive."

[¶13] In his evaluation of defendant, Dr. Jeckel indicated he reviewed documents, including police reports, and conducted a two-hour interview with him. Jeckel relayed details of the alleged December 2011 incident in a similar fashion as Dr. Killian. Jeckel also made a brief reference to Riffey's claim that a " prior domestic dispute" took place in April 2011 when " forced sex" occurred. Defendant explained that he is the victim of " problem women," i.e., those who cheat on him, assault him, or stab him. Jeckel's report indicates defendant scored a five on the Static 99 tool, putting him in the moderate to high risk category. On the MnSOST-R, defendant scored a two, placing him in the low risk category for recidivism. In his report, Jeckel opined that defendant " has shown himself to be an aggressive and violent man in a number of situations" and his disorders affect his " emotional and volitional capacity and, therefore, result in an inability to control his violent and sexual impulses."

[¶14] In his report, Dr. Jeckel found, to a reasonable degree of medical and psychiatric certainty, that defendant fulfilled the criteria for the mental disorders of alcohol and cannabis abuse in addition to a personality disorder, not otherwise specified, with antisocial features, which " predisposes him to engage in recurrent aggressive and/or violent sexual activity with women which he has denied to authorities." Based on his history, Dr. Jeckel believed defendant's personality disorder predisposed him to sexual violence and he should be declared a sexually dangerous person.

[¶15] Leah Childers testified she had an on-again, off-again relationship with defendant for approximately eight years. She recited instances of domestic violence by defendant and seeking multiple orders of protection against him. When the two were out in Virginia in 1997 or 1998, Childers stated defendant performed anal sex

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without her consent. In 2002, defendant engaged in vaginal intercourse without her consent while she had a stint in place that made sexual activity " very uncomfortable."

[¶16] Kimberly Waid testified she was defendant's girlfriend for five or six months in 2006 and 2007. She testified to an incident of domestic violence in March 2007, where defendant became " really angry" and told her the only way she was leaving the house " was in a body bag." Waid wanted to leave the residence, but defendant started shoving her and tried to keep her from leaving. Waid stated she was injured and went to the hospital and then the police station. Waid obtained an order of protection against defendant.

[¶17] S.B. testified to the offense that allegedly took place on December 31, 2005. She attended a party with her fiancé at a Springfield apartment shared by defendant and another male. S.B.'s fiancé passed out, and the three others went into the host's bedroom. While the host was looking at pornography on the computer, defendant began rubbing S.B.'s back, and she attempted to " shrug him off." They left the bedroom and started to watch a movie. Defendant passed out on the couch. S.B. passed out in a recliner " halfway" through the movie. S.B. awoke the next morning, and she was covered in a comforter. She stated her pants and underwear were down at her ankles and there was a " discharge" coming out of her vagina. She woke up the host and told him she thought she had ...

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