In re Commitment of Butler

2013 IL App (1st) 113606

• Court: Appellate Court of Illinois
• Decided: September 20, 2013
• Docket: 1-11-3606
• Status: Unpublished

Opinion

2013 IL App (1st) 113606 FIFTH DIVISION September 20, 2013

No. 1-11-3606

In re COMMITMENT OF JOHNNY BUTLER ) Appeal from ) the Circuit Court (The People of the State of Illinois, ) of Cook County Petitioner-Appellee, ) ) v. ) Nos. 08 CR 80007 ) Johnny Butler, ) Honorable Michael B. McHale, Respondent-Appellant). ) Judge Presiding

JUSTICE PALMER delivered the judgment of the court, with opinion. Justices McBride and Howse concurred in the judgment and opinion.

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 1-11-3606

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

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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

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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

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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

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"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

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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

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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

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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

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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

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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,

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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

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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

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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

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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 that they're allowed to consider and it is allowed.

So I think we're going too far afield and that we're getting

into questions of law as to what's fair and impartial or what's

proper to be considered. That's another aspect of this."

¶ 27 Respondent was permitted to question prospective jurors with regard to bias or prejudice

against violent sex offenders generally. Additionally, the trial court secured their vow to follow

the law as it was to be given to them and then gave a limiting instruction on the use of evidence

of the prior offenses. As a result, there was no abuse of discretion in rejecting the more specific

inquiry requested by the Respondent.

¶ 28 Closing Argument – Substantive Use of Basis of Opinion Testimony

¶ 29 Respondent contends that the State violated the trial court's order in limine when it

improperly argued basis of opinion testimony as substantive evidence and that the trial court

erred by overruling his objections and denying his motion for a mistrial in that regard.

¶ 30 The prosecution is afforded wide latitude in making closing arguments so long as the

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comments made are based on the evidence or reasonable inferences drawn therefrom. People v.

Williams, 192 Ill. 2d 548, 573 (2000). The prosecution may comment upon the credibility of the

witnesses and the defense characterizations of the evidence or case and it may respond in rebuttal

to statements made by the defense counsel that clearly invite a response. People v. Gonzalez,

388 Ill. App. 3d 566, 590 (2008). When we review a challenge to remarks made by the

prosecution during closing arguments, the comments must be considered in context of the entire

closing arguments made by both parties. People v. Wiley, 165 Ill. 2d 259, 295 (1995). A

reviewing court will not reverse a jury's verdict based upon improper remarks made during

closing arguments unless the comments were of such magnitude that they resulted in substantial

prejudice to defendant and constituted a material factor in his conviction. People v. Griffin, 368

Ill. App. 3d 369, 376 (2006).

¶ 31 In Wilson v. Clark, 84 Ill. 2d 186, 194-96 (1981), our supreme court adopted Federal

Rules of Evidence 703 and 705 and held that expert witnesses may base their opinion testimony

on facts not ordinarily admissible in evidence.1 Subsequently, our supreme court expanded the

rule of Wilson v. Clark and held that an expert witness may be allowed to reveal the contents of

1 Our recently adopted Illinois Rules of Evidence 703 and 705 track verbatim the corresponding federal rules. Illinois Rule of Evidence 703 (Ill. R. Ev. 703 (eff. Jan. 1, 2011)) provides: "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence." Illinois Rule of Evidence 705 (Ill. R. Ev. 705 (eff. Jan. 1, 2011)) provides: "The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination."

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materials upon which the expert reasonably relies in order to explain the basis of his or her

opinion. See People v. Anderson, 113 Ill. 2d 1, 9 (1986). This precedent did not create a new

hearsay exception as the underlying facts or data upon which an expert in a particular field is

found to have reasonably relied are not admitted for the truth of the matters asserted therein. The

underlying facts or data are admitted " 'for the limited purpose of explaining the basis for the

expert witness' opinion.' " City of Chicago v. Anthony, 136 Ill. 2d 169, 185 (1990) (quoting

Anderson, 113 Ill. 2d at 12). For this reason, facts admitted as the basis of an expert's opinion

must not be presented to the jury as substantive evidence of the underlying assertions. People v.

Murphy, 157 Ill. App. 3d 115, 119 (1987). Here, the trial court was well aware of these

principles. When ruling on respondent's motion in limine, the 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".

¶ 32 Respondent specifically complains of the following statements made in the State's closing

arguments. During the State's opening closing argument, the prosecutor stated:

"In that case, thank God there was a student around to

intercede. He got convicted on both those cases and he was on

parole for his 1975 case when he was convicted and committed

these offenses. Then when he is on parole for a robbery that had

occurred, he commits another sexual offense.

That's the one where he grabbed the woman off the street

and took her to an alleyway[,] *** told the woman to take your

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pants off *** [and] bashed her head trying to get her to submit.

Bashed it with a brick. She's injured and he receives 22 years in

the Illinois Department of Corrections for that."

In the State's rebuttal argument, the prosecutor stated:

"Look at this Respondent['s] *** history and what he has

done over and over and over again on bond, on parole, after doing

22 years in prison, going out and doing it again."

¶ 33 The State argues that these quotes are taken out of context and that when viewed in their

entirety it is clear that the prosecutor in each instance was referring to the basis of its experts'

opinions. It further points out that both of its experts testified to the facts and circumstances of

respondent's background upon which they relied in forming their opinions. As a result, we set

forth the complained-of remarks in their full relevant context. In closing, the prosecutor stated:

"[PROSECUTOR]: You have heard a lot and learned a lot

today. You have learned, as I told you this morning, what the

Sexually Violent Persons Act is in Illinois. It's those three things.

It says a person has to have a mental disorder, that they have to

have a conviction for a sexually violent offense and their mental

disorder has to be that it makes it substantially probable for them to

reoffend.

But most importantly in this case today, you found out that

this Respondent, Johnny Butler, is a sexually violent person

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because he meets every single one of those criteria. You heard

today what the doctors relied upon and I think when Dr. Ransom

just testified and she told you, she showed you clear sexually

deviant arousal pattern. That's what those doctors were relying on

and that's what they saw when they looked at this Respondent's

history and you remember it. It was as clear as day just a few

moments ago.

He started in 1975. He started with an attempt rape. He

had some kind of fixation with the University of Illinois Chicago

campus and first rape started there. He asked for change and he

forced her into an area. He said I will f*** you, you white b***.

She screams. She fights him. You heard from Dr. Ransom she

tried to fight him several times to get away and he was finally able

to flee from her when her screams were heard. He was convicted

of that. He got 5 to 15 years. He was convicted by a jury.

He goes back to the University of Illinois campus. You

heard about the facts. This time he actually raped a woman. He

took a woman on the University of Illinois campus and took her to

submit to vaginal and oral sex over and over and over. You heard

how he humiliated her and made her face on her hands and knees

in a corner and stole from her purse and then he said one more for

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the road and raped her again. It’s that deviant pattern, that deviant

pattern those doctors relied upon and that they saw.

You heard how in 1980 when that rape happened, just a few

days before on the same campus, he had committed an unlawful

restraint and when that case came into court, it was eerily similar.

He grabbed a woman. He drug her to the side. In that case, thank

God there was a student around that was able to intercede. He got

convicted on both those cases and he was on his parole for his

1975 case when he was convicted and committed these offenses.

Then when he is on parole for a robbery that had occurred, he

commits another sexual offense.

[RESPONDENT'S COUNSEL]: We will object.

THE COURT: Overruled.

[PROSECUTOR]: He is on parole for a robbery that

occurred in 1995. You heard the testimony of it from the stand

today. While he is on parole for that robbery, he commits another

sexually violent offense. It’s that pattern. It’s what the doctors are

seeing that pattern that leads them to their diagnosis and that’s the

one that happened in 1997. That’s the one where he grabbed the

woman off the street and took her to an alleyway acting like he had

a weapon holding something to her back. That’s the one that he

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told the woman take your pants off and she did until she figured

out that he didn’t have a weapon and then she started fighting.

And you heard how he bashed her head in trying to get her to

submit.

[RESPONDENT'S COUNSEL]: Objection.

[PROSECUTOR]: Bashed it with a brick. That was the

testimony from that stand a few minutes ago. It’s that sexually

deviant pattern of behavior that you see over and over and over.

She’s injured and he receives 22 years in the Illinois Department of

Corrections for that." (Emphases added.)

In rebuttal, the prosecutor argued:

[PROSECUTOR]: Thank you, your Honor. Ladies and

gentlemen, during opening statements, counsel for the Respondent

got up here and said one important statement. He said a person’s

opinions are only as good as the bases for those opinions. A

person’s opinions are only as good as what they are based on.

Ladies and gentlemen, you head from Dr. Suire and Dr.

Ransom up on that stand the mountain of information regarding

that man’s behavior, background, history of contact with the law,

problems with substance abuse, treatment, lack of treatment, lack

21 1-11-3606

of effect that the treatment had on his subsequent behavior and the

rash of victims that he left behind and that’s what they based their

opinions on.

Now counsel during closing arguments just got up here and

said, well, you’re going to get an instruction from the Court that

those things aren’t necessarily evidence. But that is what the

experts relied upon and the opinion of the experts is evidence. The

diagnosis of the experts is evidence. The risk assessment of the

experts is evidence. And when they look at what that man did to

those poor young women in 1975, in 1980 - -

[PROSECUTOR]: - - in 1997 and they see, as Dr. Ransom

and Dr. Suire testified to, a pattern of sexual deviance, that Dr.

Suire used terms such as deviance, that Dr. Suire used terms such

as deviant sexual arousal where he seeks out people who do not

want to have sex with him repeatedly over years in the face of

repeated sanctions and that is what these people who are licensed

and have a great degree of education and have Master’s degrees

and Doctorate degrees and lots of experience and then look at that

in context and say, well, I’m going to look at the Diagnostic and

22 1-11-3606

Statistical Manual of Mental Disorders. Based on that, the

authoritative manual in the field, it is clear he suffers from this

paraphilia; that he has recurrent intense sexually arousing fantasies,

sexual urges or behaviors generally involving non consenting

person over a period of at least six months and that this causes

clinically significant distress or impairment in social, occupational

or other areas of function.

Just now during closing arguments, counsel got up here and

said you can’t really consider paraphilia because everyone needs to

be clear on the criteria and the criteria aren’t so clearly laid out.

But that’s not what the expert stated on the stand. That’s not what

the evidence told you. What’s coming out of my mouth now and

what came out of counsel’s mouth, that’s not the evidence. The

evidence is what came from the witnesses on the stand.

What counsel explained and what [the prosecutor] asked,

was paraphilia not otherwise specified sexually attracted to non

consenting women. Both experts articulated quite clearly and it

explains how this man is offending and this man’s background and

this man’s pattern of behavior of criminal sexual deviant behavior

and disorders, it’s clear.

We have the burden. We embrace the burden because the

23 1-11-3606

evidence is clear. Antisocial personality disorder, or in the case of

Dr. Ransom because she didn’t have that background going back to

the defendant’s youth before the age of 15 that that evidence of

conduct disorder, that particular element, she diagnoses him with

the other personality disorder, not otherwise specified with

antisocial features. Other than that, they are the same mental

disorder. They are the same thing.

When you look at this Respondent, when you look at, as

they explain, this maladaptive pattern, this inability to abide by

social norms, what’s expected of people in society, this lack of

concern for the safety of others, this lack of remorse and you look

at this person’s history and what he has done over and over and

over again on bond, on parole, after doing 22 years in prison, going

out and doing it again - -

[PROSECUTOR]: - - it’s clear that the doctors are well

justified, that it is painfully clear that this Respondent suffers from

that personality disorder. The substance abuse, same thing based

upon what the records show the doctors. As Dr. Suire and Dr.

Ransom explain that those additional mental disorders, the

24 1-11-3606

personality disorder, the substance abuse disorder, that those act to

essentially inhibit the Respondent’s ability to control those deviant

sexual urges from the paraphilia and that’s what makes him even

more dangerous. That’s how those mental disorders interact with

each other.

So going with respect to that second element, those experts

are well justified in arriving at the conclusion they made. There is

really no question at all that the Respondent does suffer from the

mental disorders." (Emphases added.)

¶ 34 When the arguments are viewed in their entirety, it is clear that the State argued the facts

and circumstances of respondent's history of violent sexual offenses as having been relied upon

and completely supporting the opinions of their expert witnesses. Additionally, both prosecutors

assiduously adhered to the trial court's ruling in limine by repeatedly prefacing and qualifying

their remarks as relating solely to their expert witnesses opinions. As such, we find that the

arguments were not improperly made.

¶ 35 In its arguments before this court the State does not rely upon In Commitment of Kelley,

2012 IL App (1st) 110240, other than in its brief discussion on the appropriate standard of

review. Respondent apparently cites Kelley for the sole purpose of distinguishing it. In Kelley,

2012 IL App (1st) 110240, ¶ 43, respondent complained that the State had inappropriately argued

Wilson v. Clark evidence substantively in rebuttal argument. In finding no error this court

pointed out that the State's rebuttal arguments were invited by respondent's counsel's closing

25 1-11-3606

argument. Id. ¶ 44. Specifically, the State in its opening closing argument argued that

respondent's history of sexual misconduct supported their experts' opinions and helped prove

beyond a reasonable doubt that respondent suffered from a mental disorder. Id. In response,

respondent's counsel argued in closing that the jury should not give weight to one of the expert

doctor's testimony because he incorrectly relied upon a 39-year history of sexually reoffending,

pointing out that this history was really just a 4-year period 39 years ago. Id. In rebuttal, the

State pointed out that respondent had not offended for 33 years because he was incarcerated and

that as soon as he had been released from prison he reoffended. Id. ¶ 45. This court ruled that

the details argued by the State in rebuttal argument were invited. Id.

¶ 36 In the case at bar, respondent argues that as he did not attack the accuracy of the

underlying facts relied upon by the State's experts, he did not invite rebuttal argument with regard

to those facts and thus the argument was error. Along the same lines, he argues that as a portion

of the complained-of remarks occurred in opening closing argument they could not have been

invited. We find this argument to be without merit. Nothing in Kelley should be construed to

hold that argument concerning the sexually violent history of a respondent must be invited in

order to be appropriate. To the contrary, as noted above, precedent has long held that the

underlying facts reasonably relied upon by an expert witness are admissible and subject to

comment for the purpose of explaining the basis for the expert witness's opinions even if not

independently admissible. Respondent's argument here ignores the fact that regardless of points

and arguments raised by the defense, the burden of proof remains upon the State to show that the

respondent is an SVP beyond a reasonable doubt. In its quest to sustain its burden, the State may

26 1-11-3606

rely on expert witness opinion and in doing so may also explain the basis for those opinions. See

Wilson v. Clark, 84 Ill. 2d at 194-96; Anderson, 113 Ill. 2d at 9; Anthony, 136 Ill. 2d at 185.

¶ 37 We also find respondent's reliance upon People v. Murphy, 157 Ill. App. 3d 115 (1987),

to be unavailing. Murphy was a criminal case involving the charge of murder and the defense of

insanity or in the alternative self-defense. In Murphy, 157 Ill. App. 3d at 116-20, a divided panel

of this court found that the State had inappropriately inquired of a defense expert witness with

regard to the contents of a Cook County Psychiatric Institute social history report and then also

argued before the jury with regard to its contents. Specifically, the portions of the report that

were highlighted were statements of the defendant's mother that tended to negate both the

defenses of insanity and self-defense. Id. at 118. Importantly, in finding reversible error the

court noted that under Wilson v. Clark and Anderson, in order to be admissible facts relied upon

expert witnesses must be of a type reasonably relied upon by experts in the field. Id. at 119. A

majority of the Murphy court found that the declarations of the defendant's mother were not

sufficiently reliable to be admissible under Wilson v. Clark.2 Id. Such is not the case in the

matter before this court as the respondent herein has not claimed that the circumstances

surrounding respondent's prior sexually violent history were not reasonably relied upon by the

State's experts. Murphy is thus distinguishable.

2 The Murphy majority referred to this as "the hearsay exception of Wilson." Murphy, 115 Ill. App. 3d at 119. We respectfully disagree that the admissibility of underlying facts relied upon by an expert witness to explain the expert's opinion is an exception to the hearsay rule. As noted above, this type of evidence is not hearsay at all as it is not offered for the truth of the matters asserted therein, but rather to explain the basis of an expert's opinion. See Anthony, 136 Ill. 2d at 185; Anderson; 113 Ill. 2d at 9.

27 1-11-3606

¶ 38 Additionally, the trial court gave the jury a modified version of IPI Civil (2006) No. 2.04

limiting instruction as is set forth above. This instruction was given to the jury orally during the

testimony of both Dr. Suire and Dr. Ransom as well as orally and in writing at the close of the

case prior to deliberations. Additionally, the jury was instructed that closing arguments are not to

be considered as evidence. As in Kelley, we find that there is nothing in the record to rebut the

presumption that the jurors followed these instructions and we therefore find that the court's

instructions were sufficient to alleviate any risk that the jury considered the State's closing

arguments as substantive evidence. See Kelley, 2012 IL App (1st) 110240, ¶ 46; In re Detention

of Lieberman, 379 Ill. App. 3d 585, 604-05 (2007) (finding that where the trial court instructed

the jury that the details of the respondent's past crimes were being admitted to aid the jury in

understanding the basis of an expert's opinion and not as substantive evidence, there was nothing

in the record to rebut the presumption that the jury followed that instruction). Lastly, and again

as we found in Kelley, 2012 IL App (1st) 110240, ¶ 47, based upon the evidence presented in the

entire record, even if error we cannot say that these comments were of such magnitude that they

resulted in substantial prejudice to defendant and constituted a material factor in his conviction.

¶ 39 Lastly, in regard to this issue, respondent argues that the trial court erred by denying his

motion for a mistrial concerning the alleged substantive use of basis of opinion testimony during

closing argument. The decision to declare a mistrial lies within the discretion of the court, and a

mistrial should be declared only if there is some occurrence at trial of such a character and

magnitude that the party seeking a mistrial is deprived of a fair trial. Kelley, 2012 IL App (1st)

110240, ¶ 49. The underlying foundation for this argument is the previous argument that the

28 1-11-3606

state impermissibly argued basis of opinion testimony as substantive evidence. We have

determined that the State did not argue the details of respondent's sexually violent offenses as

substantive evidence but, rather, referred to that evidence as the basis of its expert witnesses'

opinions. We have also noted that the trial court consistently instructed the jury as to the

appropriate use of the evidence in question. As a result we also find that the denial of

respondent's motion for a mistrial was not an abuse of discretion.

¶ 40 Jury Instructions – Burden of Proof

¶ 41 At the jury instruction conference, the State proposed its jury instruction No. 5, which

was derived from IPI Criminal (2000) No. 2.03, as modified, as follows:

"The Respondent is presumed not to be a sexually

violent person. This presumption remains with him

throughout every stage of the trial and during your

deliberations on the verdict and is not overcome unless

from all the evidence in this case you are convinced beyond

a reasonable doubt that he is a sexually violent person.

The State has the burden of proving the Respondent

is a sexually violent person beyond a reasonable doubt and

this burden remains on the State throughout the case. The

Respondent is not required to prove that he is not a sexually

violent person."

¶ 42 Respondent objected to the above instruction and proposed in its place its

29 1-11-3606

proposed jury instruction No. 3, which substituted the second paragraph as follows:

"The State has the burden of proving the allegations of the

petition beyond a reasonable doubt and this burden remains on the

State throughout the case. The Respondent is not required to

disprove the allegation(s)."

¶ 43 The trial court overruled respondent's objection and gave the State's proposed

instruction. In so ruling, the court stated, "Okay. I overruled your objection. Part of my

ruling is that the jury does not ever get to see the petition. I find the language to be

confusing and it would be inconsistent and confusing. Overruled."

¶ 44 Respondent claims that the trial court's ruling was error as the Act explicitly

states, "[a]t a trial on a petition under this Act, the petitioner has the burden of proving the

allegations in the petition beyond a reasonable doubt." 725 ILCS 207/35(d)(1) (West

2010). The State responds that the trial court's instructions to the jury accurately stated

the law and did not mislead the jury.

¶ 45 A trial court's choice of jury instruction is reviewed for abuse of discretion.

People v. Starnes, 374 Ill. App. 3d 132, 139 (2007). An abuse of discretion occurs only

where the court's ruling is "arbitrary, fanciful or unreasonable, or where no reasonable

person could take the view adopted by the trial court." (Internal quotation marks

omitted.) People v. Rodriguez, 387 Ill. App. 3d 812, 821 (2008). "Further, a reviewing

court will not ordinarily reverse a circuit court, even if the circuit court gave faulty

instructions, unless the instructions clearly misled the jury and resulted in prejudice to the

30 1-11-3606

defendant." People v. Polk, 407 Ill. App. 3d 80, 108 (2010). "[T]he issue of whether the

jury instructions accurately conveyed to the jury the applicable law is reviewed de novo."

People v. Parker, 223 Ill. 2d 494, 501 (2006).

¶ 46 As relevant here, the Act requires:

"(b) A petition filed under this Section shall allege that all

of the following apply to the person alleged to be a sexually violent

person:

(1) The person satisfies any of the following

criteria:

(A) The person has been convicted of a

sexually violent offense;

***

(4) The person has a mental disorder.

(5) The person is dangerous to others because the

person's mental disorder creates a substantial probability

that he or she will engage in acts of sexual violence." 725

ILCS 207/15(b)(1) (West 2010).

¶ 47 In addition to the jury instruction set forth above, the court also instructed the jury

as follows: "The term sexually violent person means a person who has been convicted of

a sexually violent offense and who is dangerous because he suffers from a mental

disorder that makes it substantially probable that person will engage in acts of sexual

31 1-11-3606

violence."

¶ 48 In support of its allegation of error here, respondent relies solely upon the

Supreme Court of Wisconsin's decision in In re the Commitment of Thiel, 2000 WI 67,

235 Wis. 2d 823, 612 N.W.2d 94. In Thiel, 2000 WI 67, ¶ 36, 235 Wis. 2d 823, 602

N.W.2d 94, the Wisconsin Supreme Court found that the State had failed to prove that the

respondent was within 90 days of release or discharge from a sentence imposed for a

conviction for a sexually violent offense, from a secured correctional facility. We agree

with the State here that for at least two reasons, Thiel is inapposite.

¶ 49 First, the decision in Thiel was based on a statutory provision of Wisconsin's SVP

act (Wisconsin's Act) that does not exist in Illinois. At the relevant time, Wisconsin's Act

provided that a petition filed under that act allege that the person the State seeks to

commit be within 90 days of discharge or release. See Thiel, 2000 WI 67, ¶ 12, 235 Wis.

2d 823, 612 N.W.2d 94 (citing Wis. Stat. § 980.02(2)). The Wisconsin Supreme Court

held that this required allegation must be proven beyond a reasonable doubt and that the

State's failure to do so was fatal to their case. Id. ¶ 38. Illinois' SVP Act does not require

that the petition allege release within 90 days. Notably, this provision which was the very

basis of Thiel was repealed in 2006. See 2005 Wis. Legis. Serv. 21 (West).

¶ 50 Second, a close reading of Thiel reveals that its holding actually supports the

State's position here. Thiel did not hold that every allegation in a petition under

Wisconsin's Act must be proven beyond a reasonable doubt, rather only those required by

statute. See Thiel, 2000 WI 67, ¶ 19, 235 Wis. 2d 823, 612 N.W.2d 94. In so holding,

32 1-11-3606

the court noted that section 980.02(2) of Wisconsin's Act required the petition to contain

four distinct allegations, the same three required in Illinois plus the 90-day release date

allegation, and that they be proved beyond a reasonable doubt. Id. The court, however,

went on to say that Wisconsin law allowed the petitioner to supplement the petition with

facts to support the specific allegations listed under section 980.02(2) and that these

supplemental facts are not categorized as "allegations." Id. ¶ 20 (citing Wis. Stat. §

980.02(2)). Rather, these particular facts serve merely to buttress the allegations that

must be set forth under section 980.02(2) and to establish probable cause to believe that

the person named in the petition is a sexually violent person. Id. ¶ 21. The Wisconsin

Supreme Court went on to quote legislative history which informed that " '[t]he [S]tate

must prove each of the 4 allegations in the petition beyond a reasonable doubt.' LRB

Drafting File for 1993 Wis. Act 479, Analysis of Assembly Bill 3, at 3." Id. ¶ 22. The

reasoning of Thiel applies equally here. Our statute requires three specific allegations and

the jury was instructed that the State bore the burden of proof beyond a reasonable doubt

with regard to those specific allegations. See 725 ILCS 207/15(b)(1) (West 2010).

¶ 51 Respondent herein cites no Illinois law to support its position and Thiel is

distinguishable and in fact supports the State's position. We find that the trial court

accurately informed the jury of the applicable law and thus committed no error when it

accepted the State's proposed jury instruction, rejected the respondent's and overruled his

objections in that regard.

¶ 52 Violation of In Limine Order Regarding the Finding of Probable Cause

33 1-11-3606

¶ 53 As noted earlier, the trial court ordered in limine that the State was precluded from

eliciting testimony from its witnesses that there had been a finding of probable cause to

believe that the respondent was a sexually violent person. During the testimony of Dr.

Suire, the State inquired as to why he put respondent in a high risk group as a result of a

series of tests known as Static 99. The following is Dr. Suire's response and the

proceedings that occurred thereafter:

"A. Well, essentially, there had already been a previous

assessment looking at his risk that included it was very high.

There had been an adversarial legal proceeding in which probable

cause was found he might meet criteria in [SVP].

[RESPONDENT'S COUNSEL]: Your Honor, I have an

objection right now.

THE COURT: Jurors are to disregard that statement about

the probable cause finding. Disregard that. Go ahead."

Dr. Ransom's testimony commenced as follows:

"Q. Dr. Ransom, how did you become involved in this

case?

A. While [sic], like I said before, there is a screening

process that came to our attention where he was reached a level of

threshold. Mr. Butler reached this threshold and I was the next

psychologist on the list.

34 1-11-3606

Let me stop for a second. That's how it typically happens.

In this case it's a little bit different in that there was a previous

evaluator that assessed Mr. Butler and he has since retired. So

probable cause had already been found on Mr. Butler.

Q. Moving on.

THE COURT: Jurors, disregard any comments about

probable cause. That should be disregarded."

¶ 54 In People v. Hall, 194 Ill. 2d 305, 341-42 (2000), our supreme court explained the

rare circumstances under which a mistrial should be declared based upon a violation of a

motion in limine:

"A trial court has broad discretion to determine the

propriety of declaring a mistrial. [Citations.] A mistrial should

generally be declared only as the result of some occurrence at trial

of such character and magnitude that the party seeking it is

deprived of his right to a fair trial. [Citation.] Accordingly, the

violation of a motion in limine will constitute a ground for mistrial

only where the violation deprived the defendant of a fair trial.

[Citation.]" (Internal quotation marks omitted.)

Further, because it is within the trial court's sound discretion to grant or deny a party's

request for a mistrial, we will uphold the trial court's decision to deny respondent’s

motion for a mistrial absent an abuse of discretion. People v. Phillips, 383 Ill. App. 3d

35 1-11-3606

521, 547 (2008). An abuse of discretion exists only when the trial court's ruling is

"arbitrary, fanciful or unreasonable or where no reasonable man would take the view

adopted by the trial court." (Internal quotation marks omitted.) People v. Santos, 211 Ill.

2d 395, 401 (2004).

¶ 55 Generally, if a timely objection is made at trial to improper interrogation, the court

can cure the error by sustaining the objection or instructing the jury to disregard the

question and answer. Hall, 194 Ill. 2d at 342 (citing People v. Carlson, 79 Ill. 2d 564,

577 (1980)). In Hall, 194 Ill. 2d at 342, our supreme court recognized that situations

exist where improper questions are so damaging that a trial court cannot cure the

prejudicial effect, but found that not to be the case there.

¶ 56 Similarly, in this case, we find that the trial court's quick response to respondent's

timely objections prevented any prejudicial effect of the violation of the in limine order

and thus cured any error. First, we note that the violation here was not the result of any

improper questions by the State but rather in each case the witness' volunteered

testimony. We find nothing in the State's questions that would lead to the conclusion that

the trial court's in limine order was intentionally violated. Second, in each case,

respondent's timely objection was sustained and the jury was instructed to disregard the

offending answer. Lastly, as the trial court noted, each witness's reference to a finding of

probable cause was a brief passing reference the significance of which the jury did not

likely understand. As a result, we find that the trial court's denial of the respondent's

motion for mistrial in this regard was not an abuse of discretion.

36 1-11-3606

¶ 57 Dispositional Hearing

¶ 58 Finally, we consider respondent's claim that the trial judge denied him a

dispositional hearing as mandated by the Act (725 ILCS 207/40(b)(1) West 2010)) before

entering the commitment order. As a result of this error, respondent asks us to vacate the

commitment order and remand this matter for proceedings in accordance with the Act.

The provision regarding dispositional hearings under the Act provides in relevant part:

"(a) If a court or jury determines that the person who is the

subject of a petition under Section 15 of this Act is a sexually

violent person, the court shall order the person to be committed to

the custody of the Department for control, care and treatment until

such time as the person is no longer a sexually violent person.

(b)(1) The court shall enter an initial commitment order

under this Section pursuant to a hearing held as soon as practicable

after the judgment is entered that the person who is the subject of a

petition under Section 15 is a sexually violent person. If the court

lacks sufficient information to make the determination required by

paragraph (b)(2) of this Section immediately after trial, it may

adjourn the hearing and order the Department to conduct a

predisposition investigation or a supplementary mental

examination, or both, to assist the court in framing the commitment

order. ***

37 1-11-3606

(2) An order for commitment under this Section shall

specify either institutional care in a secure facility, as provided

under Section 50 of this Act, or conditional release. In determining

whether commitment shall be for institutional care in a secure

facility or for conditional release, the court shall consider the

nature and circumstances of the behavior that was the basis of the

allegation in the petition under paragraph (b)(1) of Section 15, the

person's mental history and present mental condition, and what

arrangements are available to ensure that the person has access to

and will participate in necessary treatment." 725 ILCS 207/40(a),

(b)(1)(2) (West 2010).

¶ 59 Immediately after entering judgment on the jury's verdict finding respondent was

an SVP under the Act, the trial court heard first from the State. The State made reference

to the provisions of the Act cited above and then asked that the trial court make a

determination that the respondent should be committed to a secure facility of the DHS for

secure care, control, and treatment. The trial court then heard from counsel for the

respondent. Counsel indicated no objection to the entry of an initial commitment order.

However, referring to section 40(b)(2) of the Act (725 ILCS 207/40(b)(2) (West 2010)),

counsel went on to note that there was no evidence adduced in the proceeding on the

question of what arrangements were available to ensure that the respondent had access to

and would participate in necessary treatment. Counsel went on to state as follows:

38 1-11-3606

"We will be asking to have a disposition hearing. We will be

asking to have an evaluation of Mr. Butler so we may present that

evidence to the Court so the Court may decide what

recommendation to make to the Department of Human Services."

¶ 60 The trial court ruled that based on the Act respondent did not have a right to a

dispositional hearing. In so ruling, the trial court relied upon two cases from the Second District

of our appellate court in which the trial court’s decision not to continue the dispositional hearing

to obtain additional information was found not to be an abuse of discretion. See In re Detention

of Varner, 315 Ill. App. 3d 626 (2000), aff'd, 198 Ill. 2d 78 (2001), cert. granted & judgment

vacated by Varner v. Illinois, 537 U.S. 802 (2002) (vacating Varner on other grounds and

remanding the case to our supreme court for further consideration in light of Kansas v. Crane,

534 U. S. 407 (2002)); In re Detention of Tittlebach, 324 Ill. App. 3d 6 (2001). The trial court

further stated:

"The evidence that I heard is Mr. Butler is in - - has done

some ancillary groups; that he has not even started stage one of a

five-stage treatment program for sexual offender treatment. There

is a clearly established pattern of deviant sexual behavior and I

don't find lack of sufficient evidence to find that he will not be

conditionally released at this time. He is going to the [DHS] in

Rushville. That's my ruling over Respondent's objection."

Subsequently, at a hearing on respondent's motion for a new trial, while denying the motion the

39 1-11-3606

trial court reiterated its ruling that based on the current case law, the trial court need not hold a

dispositional hearing so long as the court felt it had sufficient information to make a

determination as to the appropriate setting for treatment.

¶ 61 Since the trial court's ruling in this case, this court has had the opportunity to rule on the

timing and adequacy of dispositional hearings under the Act. In In re Commitment of Fields,

2012 IL App (1st) 112191, ¶ 69, appeal allowed, No. 115542 (May 29, 2013), the respondent

objected to the immediate entry of an order for commitment in a secure setting as he had a

witness to present in support of a request for conditional release and was also requesting a

predisposition evaluation be conducted. The objection was overruled and the order was entered.

On appeal, this court held that the Act's plain language requires the trial court to conduct a

hearing before entering the commitment order. Id. ¶ 73. We also recognized that the Act grants

the trial court discretion not to adjourn the proceedings where the court believes neither a

supplemental examination nor a predisposition investigation is required in framing its

commitment order. Id. However, we also ruled that the Act does not allow the trial court to

deny a respondent his right to present testimony or other evidence addressing the factors set forth

in section 40(b)(2) of the Act or in mitigation of commitment to a secure facility during the

dispositional phase. Id. Applying that interpretation of the Act, we further held that even if the

trial court determined that a predisposition evaluation was unnecessary, the trial court erred and

did not comply with the language of the Act when it failed to give the respondent an opportunity

to call his witnesses. Id. ¶ 74; see also People v. Winterhalter, 313 Ill. App. 3d 972, 980 (2000)

(where the Third District cautioned that the parties had blurred the distinction between the

40 1-11-3606

predisposition investigation or supplementary mental examination which the court may in its

discretion order with the dispositional hearing which the court is required to hold).

¶ 62 In his motion to cite additional authority and in oral argument, respondent relies heavily

on Fields and asserts that its holdings should lead us to vacate the commitment order and remand

this matter for a new dispositional hearing. On the other hand, the State acknowledges that the

current state of the law requires that a dispositional hearing be held. However, the State points

out that in the case at bar no request was made to present any additional evidence or testimony.

The only request made prior to the entry of the commitment order was for an updated evaluation

of the respondent and an opportunity to present any evidence that may be gleaned therefrom. In

this respect, the State argues that Fields is distinguishable.

¶ 63 We agree with the holdings in Fields. Pursuant to the Act, a dispositional hearing must

be held. See Fields, 2012 IL App (1st) 112191, ¶ 73. The trial court's statement to the contrary

was, therefore, in error. Nevertheless, the Act grants discretion to the trial court not to adjourn

the proceedings where it believes neither a supplemental examination nor predisposition

investigation is required in framing its commitment order. See id. We also agree that the Act

does not allow the trial court to deny a respondent's right to present evidence and testimony at the

dispositional hearing. See id.

¶ 64 However, we agree with the State that Fields is distinguishable. Further, we find that

under the particular facts of this case vacating the commitment order is not required. Respondent

herein has never indicated that he had a witness, or any evidence, to present at the dispositional

hearing and was prevented from doing so. Before the trial court, counsel for respondent did not

41 1-11-3606

indicate the desire to call a witness or present any evidence. In his motion for new trial heard 47

days later, respondent did not name any witness or cite to any evidence that he was precluded

from presenting. Lastly, at oral argument held approximately a year and a half after the denial of

his motion for new trial, counsel for respondent was still unable to name a witness or cite to any

evidence that it wished to present on the question of the appropriate commitment order. The only

request made on behalf of respondent was for the matter to be continued so that a supplemental

examination of respondent could be performed. The adjournment of the dispositional hearing for

that purpose alone is within the sole discretion the trial court. See Fields, 2012 IL App (1st)

112191, ¶ 73.

¶ 65 In Fields, respondent specifically indicated that it had a witness to present in support of a

request for conditional release. The key to the Fields decision was the trial court's refusal to

allow respondent to present testimony at the dispositional hearing. In so ruling, the Fields court

acknowledged that the trial court had the authority to determine that a predisposition evaluation

was unnecessary, but found that it was error not to give respondent the opportunity to call his

witness. In so holding, the Fields court distinguished Winterhalter and Tittlebach noting that in

neither of those cases did the respondent indicate a desire to present testimony. See Fields, 2012

IL App (1st) 112191, ¶ 74.

¶ 66 In fact the State here relies on Winterhalter in its effort to distinguish Fields. In

Winterhalter, 313 Ill. App. 3d at 980, the trial court noted after the jury's verdict that a

dispositional hearing had to be held. The respondent asked that the hearing be adjourned so that

a doctor contracted with DHS could prepare a report on treatment recommendations. Id. The

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trial court denied that request finding that it had sufficient information on which to base its

decision. Id. The trial court then asked counsel for each party if they wished to introduce any

additional evidence. Id. When that question was answered in the negative, the trial court entered

its commitment order. Id. On appeal, the Third District of this court held that as each side was

given the opportunity to present evidence and declined, and then were allowed to argue on the

question, this was sufficient for purposes of the Act. Id. at 981.

¶ 67 We agree with the State that the facts of this case are more similar to those in

Winterhalter than Fields in that the respondent was not denied the right to present any evidence.

However, we acknowledge that in Winterhalter the trial court did allow argument on the issue of

the correct commitment order. Here the opportunity to argue was much more limited. Counsel

stated that there was an insufficient record upon which to make a decision on the correct

placement, to which the trial court responded that it did not lack sufficient evidence to find that

respondent would not be conditionally released at the time, given respondent's failure to begin

sexual offender treatment.

¶ 68 While lengthier argument would make this case more like Winterhalter, the inability to

argue further has not been raised on appeal here and there has been no indication as to what

arguments might have been made other than the one cited above concerning the need for a

supplemental evaluation. In affirming the commitment order here, it is not our intention to

approve of the abbreviated nature of the hearing held in this case. Recently, in In Commitment of

Dodge, 2013 IL App (1st) 113603, ¶ 47, a case decided after this matter was heard in the trial

court, this court communicated to the trial courts of this district that in the future, considering the

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serious consequences of the Act, the dispositional hearing provided for by the Act should not be

treated as a mere formality.

¶ 69 As a result of all of the above considerations, we decline to vacate the commitment order

entered by the trial court here. In making this decision we are also cognizant, as we discussed at

oral argument, that based on the relevant provisions of the Act, by the time of this court's

decision, there presumably have been at least three periodic reexaminations conducted with

regard to the respondent's progress. 725 ILCS 207/55 (West 2010). Further, due to the time that

has passed, the provisions of section 60 of the Act (725 ILCS 207/60 (West 2010)), which allow

for the filing of a petition for conditional release, are operative.

¶ 70 CONCLUSION

¶ 71 The trial court did not abuse its discretion 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. The State did not improperly argue basis

of opinion testimony concerning the details of respondent's offenses as substantive evidence and

the trial court did not abuse its discretion by overruling objections and denying respondent's

motion for a mistrial on this basis. The trial court did not abuse its discretion by rejecting

respondent's proposed jury instruction 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 which provided that the State has the burden of proving beyond a

reasonable doubt that respondent was an SVP; and (4) the trial court did not abuse its discretion

in denying respondent's motion for mistrial based upon the State's alleged violation of an order in

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limine barring testimony that there had been a finding of probable cause to believe that

respondent was an SVP. Respondent's right to a dispositional hearing was not violated where the

trial court refused to continue the matter and order a supplemental evaluation and thus we decline

to vacate the commitment order.

¶ 72 The judgment of the circuit court of Cook County is affirmed.

¶ 73 Affirmed.

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