In re Detention of Isbell

Case Date: 08/30/2002
Court: 4th District Appellate
Docket No: 4-00-0404 Rel

NO. 4-00-0404

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Detention of David Isbell, 
THE PEOPLE OF THE STATE OF ILLINOIS, 
                       Petitioner-Appellee,
                       v.
DAVID ISBELL,
                       Respondent-Appellant. 

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Appeal from
Circuit Court of
Piatt County
No. 99MR11

Honorable
John P. Shonkwiler,
Judge Presiding.


JUSTICE COOK delivered the opinion of the court:

Respondent David Isbell appeals from the order of thePiatt County circuit court committing him to the Department ofHuman Services pursuant to the Sexually Violent Persons Commitment Act (725 ILCS 207/1 through 99 (West 1998)). We affirmedthe trial court in In re Detention of Isbell, No. 4-00-0404(January 23, 2002) (unpublished order under Supreme Court Rule23). On January 22, 2002, the United States Supreme Courtdecided Kansas v. Crane, 534 U.S. 407, 151 L. Ed. 2d 856, 122 S.Ct. 867 (2002). We granted respondent's petition for rehearingto consider the possible effect of Crane on this case. We findthat the decision in Crane does not affect our previous ruling,and we affirm.

I. BACKGROUND

On May 11, 1999, the People of the State of Illinoisfiled a sexually violent person petition pursuant to the Act,seeking an order for detention and an order for commitment of theperson of respondent. Respondent was scheduled to be releasedfrom prison on May 13, 1999, upon completion of his sentence fora 1992 conviction for aggravated criminal sexual assault (Ill.Rev. Stat. 1991, ch. 38, par. 12-14(b)(1)).

The petition alleged that respondent had the followingmental disorders, as described in the American PsychiatricDiagnostic and Statistical Manual of Mental Disorders, fourthedition (DSM-IV), which created a substantial probability that hewould engage in future acts of sexual violence: pedophilia,sexually attracted to females, nonexclusive type; alcohol abusein a controlled environment; antisocial personality disorder,severe, with narcissistic traits; asthma; problems relating tosocial environment; and global assessment functioning of 55. Thepetition also alleged that in March and April 1999, two womencame forward and reported that they had been sexually assaultedby respondent.

Respondent's trial was held on January 11 through 13,2000. The People's first witness, Bonnie R., was the victim ofthe sexual assault to which respondent pleaded guilty in 1992. This victim was respondent's niece. She was eight or nine yearsold when the sexual assault occurred. Respondent objected tothis witness's testimony and offered to stipulate that respondentpleaded guilty to the sexual assault in 1992. This witnesstestified to the details of the sexual assault that led to the1992 charges against respondent and the eventual guilty plea andincarceration.

The People introduced into evidence a photograph ofBonnie R. taken around the same time she was sexually assaultedby respondent. Respondent objected to the introduction of thephotograph because it was not provided in discovery. The Peopleresponded that the photograph was not provided in discoverybecause the witness had unexpectedly produced the photograph thatday. The People sought to introduce the photograph into evidenceon the basis that the prepubescent appearance of the allegedvictims at the time of the alleged assaults was relevant to thediagnosis of respondent's pedophilia. The People also informedthe court that all of the witnesses claiming to have been sexually assaulted by respondent unexpectedly brought photographs tocourt that day and that the People wanted to introduce all of thephotographs into evidence. The court noted respondent's continuing objection and allowed the photographs into evidence becausenothing was inflammatory or prejudicial about the photographs,and because respondent would have the opportunity to cross-examine the witnesses about the authenticity of the photographs.

The People's next witness, Joann M., was Bonnie R.'ssister. This witness testified that sometime in 1983 or 1984,when she was 9 or 10 years old, respondent had sexually assaultedher. This witness did not come forward with her accusationsuntil after she learned that respondent had sexually assaultedher younger sister. The People introduced into evidence aphotograph of Joann M. when she was 9 or 10 years old.

The People then called Dr. Jacqueline Buck to testifyas an expert witness. Dr. Buck was a clinical psychologistemployed by the Illinois Department of Corrections. Dr. Bucktestified that she had evaluated respondent personally andstudied his records, and she diagnosed him as a pedophile with analcohol problem and a severe antisocial personality disorder. Itwas Dr. Buck's professional opinion that there was a substantialprobability that respondent would commit more acts of sexualviolence. Dr. Buck cited several factors that led to her conclusion; among those were respondent's failure to attend sex-offender treatment, his denial that he had done anything wrong,the fact that his alcohol abuse would lower his inhibitions andmake him more likely to succumb to his sexual urges, and the factthat his antisocial disorder meant he did not care about the harmhe did to others. Additionally, Dr. Buck administered to respondent the Minnesota Sex Offender Screening Tool Revised, whichindicated respondent had an 87.5% chance of reoffending.

The People elicited testimony from Dr. Buck that informing her opinion she relied in part on transcripts of interviews with Veronica S. and Michelle I., the women who cameforward in March and April 1999 with accusations that respondentsexually assaulted one and attempted to sexually assault theother in 1974. Dr. Buck also relied on statements and reportsmade by Veronica S.'s and Michelle I.'s mothers regarding theevents surrounding the alleged sexual assault and attemptedsexual assault in 1974. Dr. Buck testified that the time frameand details of the past instances of sexual assault and attemptedsexual assault were relevant to the diagnosis of respondent'smental disorders.

Over respondent's objection, Dr. Buck was allowed toretell in detail allegations of sexual assault and attemptedsexual assault told to her by these women and their mothers. According to Dr. Buck, it was common for experts in her field torely on this kind of information when forming their professionalopinions. When asked why no action was taken by authoritiesagainst respondent in 1974 when the assaults were reported, Dr.Buck answered that the authorities said because respondent was 15years old at the time, it was one child's word against anotherand it would not go anywhere in court. Dr. Buck also testifiedthat it was common for child victims of sexual assault not tocome forward with their accusations until they were adults, thatthe alleged victims' stories were credible, and that she personally believed the victims.

After Dr. Buck testified, the People called VeronicaS., Michelle I., and their mothers. Each of these witnesses inturn told firsthand the same stories just related secondhand byDr. Buck. The People sought to introduce into evidence photographs of these accusers, but only one alleged victim's photograph was allowed because the other could not say how old she wasin the photograph.

The People's next witness was Dr. Paul Heaton. Dr.Heaton was a licensed clinical psychologist who provided specialized sex-offender evaluations under a contract with the IllinoisDepartment of Human Services. Dr. Heaton also relied upon andrelated in his testimony the contents of the same various reportsand interviews that Dr. Buck had relied upon, including a statement by a school janitor that in 1974 he witnessed respondentcommitting one of the sexual assaults.

Dr. Heaton testified that he had evaluated respondentpersonally and studied his records, and he diagnosed him as apedophile with an alcohol problem and a severe antisocial personality disorder. It was Dr. Heaton's professional opinion thatrespondent suffers from a mental disorder that predisposes him tocommit acts of sexual violence. Dr. Heaton also testified thatit was substantially probable that respondent will reoffend inthe future because respondent demonstrated many of the riskfactors that have been found historically to indicate a sexoffender will reoffend. On cross-examination, Dr. Heaton testified that he believed respondent's control over his emotions andactions is compromised by his mental disorder, but Dr. Heatonbelieved that respondent "has some ability to control his actions."

The final witness to testify was Debbie Cunningham, atherapist specializing in sex offenders at the Coles CountyMedical Center. Cunningham testified that while respondent wason parole in 1997 he failed to complete a required sex-offendertreatment program. Respondent's dismissal from the programresulted in his parole being revoked. Cunningham also gave anunresponsive answer to a question while testifying, the sum ofthe unsolicited information being that respondent had admittedmolesting two of his nieces. The trial court instructed the jurynot to consider that statement.

At the close of evidence, the jury was instructed todetermine whether the People had proved beyond a reasonable doubtthat respondent was a sexually violent person. A sexuallyviolent person was defined for the jury as "a person who has beenconvicted of a sexually violent offense and who is dangerousbecause he or she suffers from a mental disorder that makes itsubstantially probable that the person will engage in acts ofsexual violence." The jury was instructed that aggravatedcriminal sexual assault was a sexually violent offense. A"mental disorder" was defined for the jury as "a congenital oracquired condition affecting the emotional or volitional capacitythat predisposes a person to engage in acts of sexual violence." The jury returned a verdict finding respondent to be a sexuallyviolent person. The appeal followed.

II. ANALYSIS

Respondent's arguments on appeal can be summarized astwo distinct claims: a challenge to the constitutionality of theAct as applied in this case and an argument that the cumulativeimpact of errors in allowing testimony and exhibits into evidenceresulted in prejudice requiring reversal. We address eachargument in turn.

A. Respondent's Constitutional Challenge

Respondent argues that under the United States SupremeCourt decision in Crane, 534 U.S. 407, 151 L. Ed. 2d 856, 122 S.Ct. 867, a civil commitment statute such as the Act is onlyconstitutional so long as the statute requires a finding that theperson being committed is unable to control his dangerousness. Therefore, respondent argues, the trial court committed reversible error when it refused to give a jury instruction thatrequired a specific finding that respondent lacked emotional orvolitional control over his sexual behavior.

Prior to Crane, the Supreme Court of Illinois foundthat due process does not require a jury to make a specificfinding that a sex offender lacks emotional or volitional controlover his sexual behavior to support a commitment. See In reDetention of Varner, 198 Ill. 2d 78, 84, 759 N.E.2d 560, 564(2001). Varner, like this case, dealt with the Act which defines"mental disorder" as "a congenital or acquired condition affecting the emotional or volitional capacity that predisposes aperson to engage in acts of sexual violence." 725 ILCS 207/5(b)(West 1998). The Supreme Court of Illinois found that when ajury finds a sex offender to be a sexually violent person, thatnecessarily requires finding that the sex offender has a "mentaldisorder," and the Act's definition of mental disorder "wassufficient to 'narrow[] the class of persons eligible for confinement to those who are unable to control their dangerousness.'" Varner, 198 Ill. 2d at 84, 759 N.E.2d at 564, quotingKansas v. Hendricks, 521 U.S. 346, 358, 138 L. Ed. 2d 501, 513,117 S. Ct. 2072, 2080 (1997).

The United States Supreme Court's case of Crane was anappeal from the Kansas Supreme Court's decision in In re Crane,269 Kan. 578, 585-86, 7 P.3d 285, 290 (2000), wherein the KansasSupreme Court found that a specific jury determination of lack ofcontrol was required for civil commitment of a sex offender. TheUnited States Supreme Court held that the Constitution does notpermit commitment of dangerous sexual offenders without any lack-of-control determination, but the lack of control does not haveto be a total or complete lack of control. Crane, 534 U.S. at__, 151 L. Ed. 2d at 862, 122 S. Ct. at 870. Crane did not findthat the Constitution requires a specific jury determination thata respondent lacks volitional control in every case as respondentsuggests, because Crane upheld the commitment in the prior caseof Hendricks as constitutional, even though there was no specificjury determination of lack of control in Hendricks. Crane, 534U.S. at ___, 151 L. Ed. 2d at 863, 122 S. Ct. at 871; see alsoPeople v. Hancock, 329 Ill. App. 3d 367, 375, 771 N.E.2d 459, 465(2002).

Crane requires some determination of lack of controlover behavior before a sex offender may be civilly committed. Inthis case, there was a determination by the jury that respondentlacked control over his behavior. The jury was instructed thatit had to find beyond a reasonable doubt that respondent sufferedfrom a mental disorder, which by definition was a finding thatrespondent had a congenital or acquired condition "affecting hisemotional or volitional capacity that predisposes him to engagein acts of sexual violence." Therefore, there was no need forthe jury to make an additional finding that respondent lackedemotional or volitional control over his sexual behavior. Varner, 198 Ill. 2d at 84-85, 759 N.E.2d at 564.

B. Cumulative Impact of Errors in Allowing Testimony and Exhibits into Evidence

Respondent's first argument regarding improperlyadmitted evidence is that the trial court erred by allowing theexperts to testify to various facts and conclusions found in thecontents of the reports they relied upon in forming their professional opinions. The first items of testimony by the expertwitnesses that respondent complains about are Dr. Buck's testimony that no action was taken against respondent in 1974 becausethe authorities told the alleged victim's mother that it was onechild's word against another and it would not go anywhere incourt, and Dr. Heaton's testimony that respondent had beenidentified by a school janitor as the perpetrator of a sexualassault in 1974.

It is the rule in Illinois "that an expert may give hisopinion based upon facts that are not in evidence if those factsare of a type reasonably relied upon by experts in the particularfield." People v. Nieves, 193 Ill. 2d 513, 527-28, 739 N.E.2d1277, 1284 (2000), citing Wilson v. Clark, 84 Ill. 2d 186, 193,417 N.E.2d 1322, 1326 (1981) (adopting Federal Rule of Evidence703). "While the contents of reports relied upon by expertswould be inadmissible as hearsay if offered for the truth of thematter asserted, an expert may disclose the underlying facts andconclusions for the limited purpose of explaining the basis forhis opinion." Nieves, 193 Ill. 2d at 528, 739 N.E.2d at 1284.

Respondent argues that the trial court abused itsdiscretion by allowing admission of these first items ofcomplained-of testimony because the testimony was not offered forthe limited purpose of permitting the experts to explain thebasis for their opinions. Particularly, respondent argues thatthe jury had no reason to think the complained-of testimony wasnot offered for the truth of the matter asserted (that respondentcommitted uncharged acts of sexual assault) because the trialcourt did not give the jury a limiting instruction and becauseDr. Buck was allowed to testify that she found the allegations inthe reports to be credible.

In ruling on respondent's objection to the complained-of testimony, the trial court found that the testimony could beallowed if the experts testified that they relied on the reportsin forming their opinions. The People were very thorough inprefacing the expert's testimony by asking them if they reliedupon the reports in forming their opinions and whether it wascommon for experts in their field to rely on such reports. Whileit may have been preferable for the trial court to give a limiting instruction, since the trial court's intention was not toallow the evidence substantively, we will not disturb the court'sdecision. See People v. Pasch, 152 Ill. 2d 133, 176-77, 604N.E.2d 294, 311 (1992) (trial court's decision to allow expert'shearsay testimony without limiting instruction upheld becausetrial court's intention not to allow the evidence substantivelywas manifested to jury through rulings in the trial).

Respondent further argues that the trial court erred inallowing testimony that it was common for child victims of sexualassault not to come forward with their accusations until theywere adults, and that one accuser's mother did not pursue chargesagainst respondent because she wanted to protect her daughter.Respondent argues that this evidence was irrelevant and prejudicial because the purpose of the trial was to determine respondent's current mental condition, not to determine the fears andregrets the alleged assaults caused in the victims.

When the issue is the propriety of allowing an expertto disclose substantively inadmissible underlying facts toexplain his opinion, "'[t]he proponent of the evidence should berequired to satisfy the court both that such items are of thetype customarily relied upon by experts in the field[] and thatsuch items are sufficiently trustworthy to make such reliancereasonable.' (Emphasis in original.) [Citation.]" Lovelace v.Four Lakes Development Co., 170 Ill. App. 3d 378, 384, 523 N.E.2d1335, 1339 (1988). In this case, the complained-of testimony wasoffered to explain why the accusers would not pursue theirallegations against respondent when the alleged assaults occurred, thereby demonstrating why the reports were trustworthyand reasonably relied upon despite the fact that the accusationswere only recently made. Under Lovelace, the experts in thiscase were required to explain why the reports they relied uponwere trustworthy, which they did. It was not an abuse of discretion for the trial court to allow this testimony.

Respondent also argues that the trial court erred inallowing Dr. Buck to comment on the credibility of the accusers.Dr. Buck obviously had to make an initial determination of theaccusers credibility to decide whether to rely upon their reportsin forming her professional opinions. It was not improper forDr. Buck to testify that she found the allegations made in thereports to be credible because that testimony was only admittedto demonstrate the basis of her opinion. The People offered thetestimony of the accusers themselves for the truth of the matterasserted.

Respondent's second argument regarding improperlyadmitted evidence involves the admission of the photos of thevictims and alleged victims. The People wanted to introduce themto demonstrate that the victim and alleged victims looked prepubescent when the assault and alleged assaults occurred, tosupport respondent's pedophilia diagnosis. However, the Peopledid not need to enter the photographs to make their case. In reDetention of Walker, 314 Ill. App. 3d 282, 293-94, 731 N.E.2d994, 1001-02 (2000) (alleged victims' physical characteristics donot have to be known to determine whether diagnosis of pedophiliais proper.) The trial court allowed the photographs into evidence because it found that the photographs were neither inflammatory nor prejudicial.

Respondent's third argument regarding improperlyadmitted evidence involves the admission of Bonnie R.'s testimonyabout the details of the sexual assault for which respondent wasconvicted, offered to prove respondent had been convicted of theprerequisite sexually violent offense. The introduction of acertified copy of respondent's 1992 conviction would have beensufficient to prove that respondent was convicted of a prerequisite sexually violent offense required for commitment under theAct. People v. Winterhalter, 313 Ill. App. 3d 972, 979, 730N.E.2d 1158, 1164 (2000); see also People v. Peete, 318 Ill. App.3d 961, 969, 743 N.E.2d 689, 695 (2001) (error not to acceptstipulations to prior convictions that are an element of thecrime charged). However, the testimony of the details of thesexually violent offense that led to the prerequisite convictionunder the Act is admissible "if relevant to the remaining issuesof whether the person has a mental disorder and is dangerous toothers because the person's mental disorder creates a substantialprobability that he or she will engage in acts of sexual violence." Winterhalter, 313 Ill. App. 3d at 979, 730 N.E.2d at1164; see 725 ILCS 207/15(b)(4), (b)(5) (West 1998).

The admissibility of evidence is within the sounddiscretion of the trial court and its decision will not beoverturned absent an abuse of that discretion. People v. Illgen,145 Ill. 2d 353, 364, 583 N.E.2d 515, 519 (1991). It is notapparent that the trial court abused its discretion in allowingthe photographs and the testimony from Bonnie R. into evidence. However, even if there was error, any error was harmless in lightof the overwhelming evidence supporting the jury's verdict.

The Illinois Supreme Court has stated that under theAct:

"A defendant cannot be involuntarily committed based on past conduct. Involuntary confinement is permissible only where the defendant presently suffers from a mental disorderand the disorder creates a substantial probability that he will engage in acts of sexualviolence in the future." (Emphasis added.) In re Detention of Samuelson, 189 Ill. 2d548, 559, 727 N.E.2d 228, 235 (2000).

Under the Act, the only relevant consideration is whether arespondent presently suffers from a mental disorder creating asubstantial probability that he will engage in acts of sexualviolence in the future. If the evidence supporting the jury'sverdict that the respondent presently suffers from the kind ofmental disorder contemplated by the Act was insufficient orclosely balanced, that would raise a concern that respondent wasactually being punished for his past conduct. Then any errors inadmitting evidence about respondent's past conduct may requirereversal. That, however, is not the case here.

There was overwhelming evidence that supported thejury's finding that respondent presently suffers from a mentaldisorder and the disorder created a substantial probability thathe will engage in acts of sexual violence in the future. BothDr. Buck and Dr. Heaton diagnosed respondent as a pedophile withan alcohol problem and a severe antisocial personality disorder. It was Dr. Buck's and Dr. Heaton's professional opinion thatrespondent suffers from a mental disorder which predisposes himto commit acts of sexual violence and that it was substantiallyprobable that respondent will reoffend in the future becauserespondent demonstrated many of the risk factors that have beenfound historically to indicate a sex offender will reoffend. Respondent had been committing violent sexual assaults since1974. He continued to deny that he had a problem and refused tocomplete sex-offender counseling. Finally, Dr. Buck testifiedthat test results indicated respondent had an 87.5% chance ofreoffending. In light of evidence supporting the jury's verdict,there was no prejudice in allowing Bonnie R. to testify.

III. CONCLUSION

The Act (725 ILCS 207/1 through 99 (West 1998)) isconstitutional as applied in this case, the jury was not requiredto make a specific finding that respondent lacked emotional orvolitional control over his actions, and there was no prejudicialerror. Therefore, we affirm the order of the Piatt Countycircuit court committing respondent to the Department of HumanServices.

Affirmed.

KNECHT and STEIGMANN, JJ., concur.