In Re Detention of Kish

916 N.E.2d 595, 334 Ill. Dec. 180, 395 Ill. App. 3d 546, 2009 Ill. App. LEXIS 925
CourtAppellate Court of Illinois
DecidedSeptember 24, 2009
Docket3-08-0078
StatusPublished
Cited by4 cases

This text of 916 N.E.2d 595 (In Re Detention of Kish) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Detention of Kish, 916 N.E.2d 595, 334 Ill. Dec. 180, 395 Ill. App. 3d 546, 2009 Ill. App. LEXIS 925 (Ill. Ct. App. 2009).

Opinion

JUSTICE SCHMIDT

delivered the opinion of the court:

In 1985, the State petitioned the trial court to civilly commit the respondent, Andrew M. Kish, under the Sexually Dangerous Persons Act (Act) (Ill. Rev. Stat. 1985, ch. 38, par. 105 — 1.01 et seq.). The court found the respondent to be a sexually dangerous person (SDP), and he was committed. On October 28, 2002, the respondent filed an application to show that he was recovered (725 ILCS 205/9 (West 2002)). In response to the respondent’s application, the court granted him a conditional release (725 ILCS 205/9 (West 2004)) on December 22, 2004.

On September 5, 2006, the respondent filed a pro se motion to modify the conditions of his release. During the pendency of the respondent’s motion, the State filed a petition to revoke the respondent’s conditional release (725 ILCS 205/9(e) (West 2006)). Prior to the hearing on the State’s petition, the respondent’s attorney filed several preliminary motions on the respondent’s behalf, which the court denied. Following a hearing, the court granted the State’s petition to revoke. 1

The respondent appeals the revocation of his conditional release. The respondent argues that the trial court erred by denying his preliminary motions to: (1) apply the rules of civil procedure and the corresponding supreme court rules; (2) establish reasonable doubt as the State’s burden of proof; (3) bar the use of polygraph evidence; (4) strike the reports of the respondent’s treating psychologist and to bar the psychologist from testifying; and (5) strike and to bar certain statements made by the respondent as violative of his fifth amendment right against self-incrimination. Additionally, the respondent submits that, at the hearing on the State’s petition to revoke, the court erred by allowing the hearsay testimony of witnesses other than the polygraph examiner concerning the respondent’s statements to the polygraph examiner.

BACKGROUND

On December 22, 2004, the trial court issued the conditional release order. The order imposed the following conditions, among others:

“1. Mr. Kish shall be placed in a structured environment, such as a halfway house, approved by the IDOC.
3. Mr. Kish will be supervised while on conditional release by the Parole Department of the Illinois Department of Corrections. $ $ $
6. Mr. Kish [will] be required to attend sex offender specific treatment along with whatever other programs are deemed appropriate by [the] treatment staff. The amount of treatment will ultimately be determined by the treatment staff. Mr. Kish will follow all treatment program rules. Two weekly groups are recommended, if feasible. It is also recommended that he obtain general mental health treatment. The treatment provider(s) will be approved by the treatment staff of Big Muddy River Correctional Center/IDOC. ík íj;
12. Mr. Kish [will] be required to have an initial assessment and ongoing evaluations by his sex offender treatment staff.
13. If requested by [his] parole agent or treatment provider, Mr. Kish [will] be required to submit to a polygraph evaluation. * * *
17. In the event that Mr. Kish becomes uncooperative, unmanageable, manipulative, at extreme high risk, or a danger to himself or others, as determined by treatment staff or a parole agent, this will be reported to the Will County State’s Attorney and the State’s Attorney shall determine whether or not a petition for recommitment is appropriate and upon the filing of a petition[,] a hearing shall be held pursuant to section 5 — 6—4 of the Unified Code of Corrections in order to determine whether Mr. Kish should be returned to the Illinois Department of Corrections. * * *
22. Neither Mr. Kish, nor those he resides with, shall possess/ own, review, or use pornography.”

On November 20, 2007, the State filed a petition to revoke the respondent’s conditional release, alleging that he had violated paragraphs 6, 17, and 22. The petition said that, with regard to paragraph 6, he had failed to follow all treatment rules. Concerning paragraph 17, the State alleged that the respondent had become uncooperative, unmanageable, and at extreme risk, and he had presented a danger to others. Regarding paragraph 22, the petition stated that the respondent had reviewed pornography.

The record shows that while the respondent was on conditional release, his treating psychologist was Dr. Robert Baker, and his parole officer was Daniel Junker. The record also indicates that the respondent had been given polygraph examinations while on conditional release.

On November 29, 2007, prior to the hearing on the State’s petition to revoke, the respondent filed a document with the trial court that contained five motions regarding the State’s petition to revoke. The respondent moved to establish that the rules of civil procedure and the corresponding supreme court rules should apply. He moved that, contrary to the language of the applicable statutes (725 ILCS 205/9(e) (West 2006); 730 ILCS 5/5 — 6—4(c) (West 2006)), which say that the State’s burden of proof is the preponderance of the evidence, the burden of proof should be beyond a reasonable doubt. The respondent moved in limine to bar the results of the polygraph examinations. He moved to strike Baker’s reports and to bar the psychologist’s testimony. The respondent moved to strike and to bar statements he was required to make under the conditions of his release, as violating his fifth amendment right not to be compelled to testify against himself.

At the hearing on the respondent’s motions, the State argued, among other things, that it was not offering the polygraph evidence to prove that the respondent had engaged in the conduct at issue but, rather, to explain the circumstances surrounding the respondent’s admissions to Baker and to Junker. At the conclusion of the hearing on the motions, the court denied them.

The matter proceeded to the hearing on the State’s petition to revoke. During the hearing, both Baker and Junker testified that they questioned the respondent about the results of his polygraph examinations. During these conversations, the respondent admitted to Baker and to Junker that he had: (1) masturbated in public bathroom stalls; and (2) fantasized about sexual contact with male minors. Baker said that, initially, the respondent shared these admissions during group therapy. Later, however, the respondent refused to contribute to discussions in group therapy.

Additionally, Baker stated the following:

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Related

People v. Fischer
2013 IL App (1st) 110193 (Appellate Court of Illinois, 2014)
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2012 IL App (4th) 100664 (Appellate Court of Illinois, 2012)
People v. Craig
934 N.E.2d 657 (Appellate Court of Illinois, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
916 N.E.2d 595, 334 Ill. Dec. 180, 395 Ill. App. 3d 546, 2009 Ill. App. LEXIS 925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-detention-of-kish-illappct-2009.