People v. Vercolio

843 N.E.2d 417, 363 Ill. App. 3d 232, 300 Ill. Dec. 159, 2006 Ill. App. LEXIS 20
CourtAppellate Court of Illinois
DecidedJanuary 18, 2006
Docket3-04-0451
StatusPublished
Cited by8 cases

This text of 843 N.E.2d 417 (People v. Vercolio) 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
People v. Vercolio, 843 N.E.2d 417, 363 Ill. App. 3d 232, 300 Ill. Dec. 159, 2006 Ill. App. LEXIS 20 (Ill. Ct. App. 2006).

Opinions

PRESIDING JUSTICE SCHMIDT

delivered the opinion of the court:

In 1994, the State petitioned the trial court to find the respondent, Brian A. Vercolio, to be a sexually dangerous person (SDP) (725 ILCS 205/0.01 (West 1994)). The court adjudged the respondent to be an SDP and ordered him to be civilly committed.

In 2002, the respondent filed an application asking the trial court to find that he was recovered (725 ILCS 205/9 (West 2002)). At an evidentiary hearing, the court ruled that the proposed testimony of the State’s expert witness met the standard for admissibility in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). At trial, a jury found that the respondent appeared no longer to be dangerous, but that it was impossible to determine with certainty under conditions of institutional care that he was fully recovered (725 ILCS 205/9 (West 2002)). Accordingly, the court ordered the respondent to be released under 53 enumerated conditions (725 ILCS 205/9 (West 2002)).

On appeal, the respondent argues that the trial court erred by ruling that the expert’s proposed testimony met the Frye standard for admissibility because the expert relied on (1) the Minnesota Sex Offenders Screening Tool Revised (MnSOST-R) and the Static-99 actuarial risk assessment tools; and (2) 25 variables that the expert had developed for assessing the risk of recidivism among sex offenders. The respondent also contends that seven of the conditions imposed by the court for his release are excessive. We affirm in part and remand with directions.

BACKGROUND

The record shows that the respondent was found to be an SDP because of numerous acts of exhibitionism. On March 27, 2002, the respondent filed his application asking the trial court to find that he was recovered. On that date, the respondent also filed a demand that a sociopsychiatric report be prepared by the Department of Corrections (DOC) (see 725 ILCS 205/9 (West 2002)).

At a hearing on May 31, 2002, the assistant State’s Attorney indicated that the report was being prepared for the DOC by Dr. Mark Carich, but that the parties had not yet received copies of it. The respondent’s court-appointed attorney stated that when the attorney received the report, he would file a motion requesting a Frye hearing.

The record supplied to this court does not include either a copy of Carich’s report or a copy of the respondent’s motion for a Frye hearing. The record, however, includes the transcript of the Frye hearing conducted by the trial court in several proceedings, beginning on September 20, 2002, and ending on April 14, 2003. Dr. Barry Leavitt testified for the State, and Dr. Terrence Campbell testified for the respondent.

At the beginning of the hearing, the parties agreed to allow Campbell to testify first even though the State had the burden of going forward. Campbell stated that he had reviewed Carich’s report and Leavitt’s evaluation of Carich’s report. Campbell also had prepared an evaluation of Carich’s report.1

Campbell testified that Carich had used 25 variables concerning treatment effectiveness to assess the respondent’s risk of sex offense recidivism. Carich also had employed the MnSOST-R and the Static-99 actuarial risk assessment tools.

Campbell said that he used a 1998 study published by R. Karl Hanson and Monique T. Bussiere to assess Carich’s 25 variables. Hanson and Bussiere had “identified] different risk factors and the extent to which those factors are correlated with previously convicted sexual offenders committing new sexual offenses after they are released from confinement.” Campbell criticized Carich’s use of the 1996 version of the Hanson and Bussiere study because it was not subjected to peer review in the literature, but the 1998 version was peer reviewed.

Campbell testified about each of Carich’s 25 variables. Concerning most of the variables, Campbell said that there was not a statistically significant correlation between the variables and a risk of recidivism, according to the 1998 Hanson and Bussiere study. Regarding other variables, Campbell stated that there was no support in peer-reviewed journals for using those variables to assess the risk of recidivism. Campbell said that one of Carich’s variables combined four of Hanson and Bussiere’s risk factors. Campbell asserted that Hanson and Bussiere had advised against combining their risk factors because “the correlations are too small” and “we don’t know about the intercorrelations.”

Campbell acknowledged that Leavitt’s report stated that the Association for the Treatment of Sexual Abuse (ATSA) recognizes the variables used by Carich. Campbell asserted, however, that the ATSA recognized Carich’s variables out of self-interest in promoting its professional agenda rather than on the basis of scientific data.

Campbell testified that there were “major shortcomings” with Carich’s reliance on the MnSOST-R Campbell said that the only peer-reviewed article that assessed the MnSOST-R had reported that the MnSOST-R did not realize an acceptable level of predictive accuracy.

Campbell stated that the most comprehensive study of the Static-99 found that it moderately predicted recidivism risk. The study concluded that the Static-99 should not be used by itself to predict the risk of recidivism.

On cross-examination, Campbell said that he specializes in forensic psychology with several subspecialties within that specialty. He treated sex offenders in the past, but does not currently treat sex offenders. Campbell stated that he also does not assess the risk of sex offender recidivism because he does not believe that such assessments are accurate at this time.

Leavitt testified that he was familiar with Camphell’s report concerning Carich’s report. Leavitt disagreed with Campbell’s reliance on the 1998 Hanson and Bussiere study to assess each of Carich’s 25 variables individually. Leavitt then discussed each of Carich’s 25 variables. He stated that the variables were supported by research in the professional literature and by the use of similar variables in recidivism risk assessment programs in other states.

Leavitt disagreed with Campbell’s characterization of the ATSA as a biased, self-interest group. He submitted that the ATSA was a group of specialists who are knowledgeable about the field of sex offender recidivism assessment.

Leavitt said that the MnSOST-R and the Static-99 are actuarial risk assessment tools used by professionals in his field. He asserted that the debate about their use did not concern whether to use them but, rather, how they should be used. In summary, Leavitt stated that Carich’s 25 variables, as well as the MnSOST-R and the Static-99, were accepted within the psychological community.

At the conclusion of the hearing, the trial court ruled that Carich’s report met the standard for admissibility under Frye. The matter proceeded to a jury trial.

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People v. Vercolio
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Bluebook (online)
843 N.E.2d 417, 363 Ill. App. 3d 232, 300 Ill. Dec. 159, 2006 Ill. App. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-vercolio-illappct-2006.