People v. Burns , 337 Ill. App. 3d 224 ( 2003 )

JUSTICE SLATER

delivered the opinion of the court;

The respondent, Robert W. Burns, was adjudicated a sexually dangerous person in 1986 and committed to the custody of the Department of Corrections (DOC). On May 14, 2001, he filed an application for discharge pursuant to section 9 of the Sexually Dangerous Persons Act (Act) (725 ILCS 205/9 (West 2000)). Attached to his petition was a motion for an independent psychiatric examination, a motion to strike Dr. Mark Carich’s socio-psychiatric report, and a request for appointment of an independent guardian. The trial court denied the motions. A jury found that the respondent was still sexually dangerous and rejected his request for release. On appeal, the respondent argues that: (1) the trial court erred in denying his motion for an independent psychiatric examination; (2) the court erroneously denied the motion to strike Dr. Carich’s report; (3) the trial court erred in denying his motion for appointment of an independent guardian; (4) the court’s refusal to tender the jury instructions offered by defense counsel was improper; and (5) the State failed to prove that he was still sexually dangerous beyond a reasonable doubt. We reverse in part, affirm in part and remand the cause for further proceedings.

BACKGROUND

The respondent filed his second application for discharge in May of 2001. Attached to his application were several pro se motions. First, the respondent moved for an independent psychiatric examination, alleging that psychiatrist Ijaz Jatala was not a licensed psychiatrist and was biased. No supporting documentation was included with the motion. The respondent’s second motion was a request to strike the socio-psychiatric report submitted to the court pursuant to the Act. In this motion, the respondent claimed that the report was insufficient because Dr. Carich was not a licensed psychologist and because no sociologist participated in its preparation. In his third motion, the respondent argued that the DOC, as his guardian, was not acting in his best interests because of undue bias against him.

After hearing arguments, the trial court denied the respondent’s request for an independent examination. The court further determined that Dr. Carich’s psychological report met the requirements of the Act and denied the motion for an independent guardian.

At trial, Dr. Carich testified that he has a Ph.D. in counseling and received his undergraduate diploma in psychology. He has coordinated the DOC’s sexual offender treatment program for more than 10 years and has testified in at least 80 cases involving sexually dangerous persons. Dr. Carich testified that of those cases, he has supported 19 committed persons for discharge.

The respondent was placed in the DOC program in 1986 for admittedly abusing more than 40 victims. His victims ranged in age from infant to nine years old. Dr. Carich testified that the respondent had made progress since his admission. He cooperated with the DOC staff and regularly attended all group meetings. However, in 1998, the respondent was suspended from the program for violating DOC rules by engaging in sexual intercourse with another member of his group. The respondent was later reinstated. Shortly after his reinstatement, he voluntarily dropped out of the program. Dr. Carich did not believe that the respondent was ready to return to society.

The socio-psychiatric report prepared by Dr. Carich and signed by Dr. Jatala, social worker Nancy Henderson and warden Michael Holmes was not entered as evidence. At the conclusion of the trial, the jury found that the respondent was still sexually dangerous and denied his application for recovery.

ANALYSIS

On appeal, the respondent first claims that the trial court erred in denying his motion for an independent psychiatric examination. He claims that he has a right to an independent examination under the due process clause of the United States Constitution. U.S. Const., amend. XIV

The due process clause of the federal constitution imposes constraints on governmental regulations that deprive persons of liberty or property interests. Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). The right to due process of law is the right to a fundamentally fair trial. Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973). Procedural due process guarantees that a defendant has the right to present relevant, competent evidence and that the State must take steps to ensure that an indigent defendant has a fair opportunity to present his defense. Ake v. Oklahoma, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087 (1985). The State may not maintain a strategic advantage over a defendant when that advantage casts a pall on the proceedings. Ake, 470 U.S. 68, 84 L. Ed. 2d 53, 105 S. Ct. 1087.

When considering a due process issue, courts must consider three factors. Those factors are: (1) the liberty or property interest with which the State has interfered; (2) the risk of erroneous deprivation of the interest through the procedures already in place and the probable value of additional or substitute procedural safeguards; and (3) the effect the administrative and fiscal burdens would have on the State. Mathews, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893.

There is little question that the respondent’s right to liberty is jeopardized under the Act. See People v. Trainor, 196 Ill. 2d 318, 752 N.E.2d 1055 (2001). Analysis of the second factor, however, is more complex.

At any stage in a commitment proceeding, a respondent is at serious risk of his liberty being erroneously deprived. Consequently, he must be provided the essential protections available at a criminal trial, i.e., the right to a jury, representation by counsel and proof of sexual dangerousness beyond a reasonable doubt. People v. Olmstead, 32 Ill. 2d 306, 205 N.E.2d 625 (1965); People v. Pembrock, 62 Ill. 2d 317, 342 N.E.2d 28 (1976). These protections are equally available at a recovery proceeding. See Trainor, 196 Ill. 2d 318, 752 N.E.2d 1055.

Under notions of due process, we find that these rights include the right to an independent psychiatric examination. Cf. People v. Knuckles, 165 Ill. 2d 125, 650 N.E.2d 974 (1995) (holding that, as a matter of due process, an indigent defendant in a criminal proceeding is entitled to psychiatric assistance when his mental capacity is at issue); People v. Botruff, 331 Ill. App. 3d 486 (2002) (finding that a statutory right to the appointment of an independent expert exists under the Sexually Violent Persons Commitment Act (725 ILCS 207/1 et seq. (2000))). The finding necessary to obtain release under the Act requires the testimony and analysis of an expert in the field of sexually dangerous behavior. Disallowing a request for an independent examination places the respondent at an extreme disadvantage. The jury is left only with the State’s expert opinion as to the respondent’s mental state. Typically, that expert testifies that the respondent is still sexually dangerous. Unless the respondent is provided an independent psychiatric expert, he is virtually incapable of rebutting the State’s evidence.

The State contends that the respondent is allowed to bring a motion for an independent examination at an application for discharge proceeding and that this procedure provides an adequate safeguard against improper commitment. We recognize that under current commitment procedures, the respondent can move for the appointment of an independent psychiatrist. See generally People v. Finkle, 214 Ill. App. 3d 290, 573 N.E.2d 381 (1991). However, such motions are often denied by the court because the respondent fails to provide evidence of bias or prejudice. Finkle, 214 Ill. App. 3d 290, 573 N.E.2d 381 (requiring committed persons to set forth particular facts demonstrating that treating professionals employed by Department would not fairly and objectively render assistance). Due to the respondent’s lack of means with which to prove such a theory, we find this “additional safeguard” inadequate.

The third factor involves consideration of the fiscal and administrative burdens that would arise from providing a committed person with an independent expert examination. We realize that the imposition of the right to an examination at the recovery stage imposes a significant burden on the State. The Act includes no limitation on the number of applications for recovery that can be filed or the time between each filing. However, we are not in a position to alter these oversights. See Trainor, 196 Ill. 2d 318, 752 N.E.2d 1055 (Act’s impact on State resources is a legislative matter for the General Assembly to address). Nor do we find the appointment of an independent expert unduly burdensome. Accordingly, we hold that the trial court violated the respondent’s right to due process in denying his request for an independent psychiatric examination.

In light of our finding, it is unnecessary to discuss the remaining issues in this case. However, in the interest of judicial economy, we will address the respondent’s challenge against Dr. Carich’s report.

The respondent claims that the trial court erred in denying his motion to strike the socio-psychiatric report. Specifically, the respondent argues that Dr. Carich is not qualified to prepare the report because he is not a licensed psychologist. He further claims that the report is defective because it was not signed by a sociologist.

After a person has been found to be sexually dangerous and has been committed to the custody of the DOC, he may apply for conditional release or discharge pursuant to section 9 of the Act. Section 9 provides that the DOC must submit a socio-psychiatric report “prepared by the psychiatrist, sociologist, psychologist and warden of, or assigned to, the institution wherein such applicant is confined.” 725 ILCS 205/9 (West 2000). The court shall consider the report and any other relevant information submitted by the respondent.¹ 725 ILCS 205/9 (West 2000).

The Act does not impose any licensing requirements for psychologists who sign the socio-psychiatric report, and we will not engraft a licensing qualification where such a requirement is not clearly apparent. It should also be noted that Dr. Carich has been found qualified to render opinions for purposes of recovery applications in other cases. See People v. Sizemore, 311 Ill. App. 3d 917, 726 N.E.2d 204 (2000); People v. McDougle, 303 Ill. App. 3d 509, 708 N.E.2d 482 (1999). We therefore reject the respondent’s argument that Dr. Carich’s report did not satisfy section 9 of the Act. See Sizemore, 311 Ill. App. 3d 917, 726 N.E.2d 204.

Any claim that Nancy Henderson fails to fulfill the requirements of section 9 is equally misplaced. The abbreviations after Henderson’s name, M.S.A., L.S.W., and L.C.S.W., indicate that she has a master’s degree in social work and is a licensed clinical social worker. The trial court therefore did not err in denying the respondent’s motion to strike Dr. Carich’s report.

CONCLUSION

The judgment of the circuit court of La Salle County is reversed in part, affirmed in part and remanded for further proceedings consistent with this opinion.

Reversed in part and affirmed in part; cause remanded.

HOLDRIDGE, J., concurs.

1 In this case, the report was submitted to the court but was not presented to the jury.