In re Commitment of Trulock , 2012 IL App (3d) 110550 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Commitment of Trulock, 2012 IL App (3d) 110550Appellate Court In re COMMITMENT OF JEREMY TRULOCK (The People of the State
Caption of Illinois, Petitioner-Appellee, v. Jeremy Trulock, Respondent-
Appellant).
District & No. Third District
Docket No. 3-11-0550
Filed June 6, 2012
Held The trial court’s finding that respondent was a sexually violent person
(Note: This syllabus and his commitment to a secure facility for institutional care were upheld
constitutes no part of on appeal, notwithstanding defendant’s contentions that the trial court
the opinion of the court erred in denying his motion to dismiss the commitment petition on the
but has been prepared ground that a probable cause hearing was not held within 72 hours, in
by the Reporter of denying his motion to strike two potential jurors for cause, in finding that
Decisions for the he was a sexually violent person, and in committing him to institutional
convenience of the care, since the delays were either attributable to, or acquiesced in by,
reader.)
respondent, it would be unfair to allow respondent to complain about an
error he induced or accepted, respondent failed to establish he was
prejudiced by the denial of his motion to strike two potential jurors,
respondent’s arguments did not undermine the finding that he was
sexually violent, and respondent’s placement in a secure facility was not
an abuse of discretion.
Decision Under Appeal from the Circuit Court of Knox County, No. 10-MR-81; the Hon.
Review Scott Shipplett, Judge, presiding.
Judgment Affirmed.
Counsel on Jamie L. Mitchell, of Statham Long & Mitchell, LLC, of Galesburg, for
Appeal appellant.
Lisa Madigan, Attorney General, of Chicago (David A. Simpson,
Assistant Attorney General, of counsel), for the People.
Panel JUSTICE CARTER delivered the judgment of the court, with opinion.
Justice Lytton concurred in the judgment and opinion.
Presiding Justice Schmidt specially concurred, with opinion.
OPINION
¶1 After a jury trial, respondent, Jeremy Trulock, was found to be a sexually violent person
(SVP) under the Sexually Violent Persons Commitment Act (Act or SVP Act) (725 ILCS
207/1 to 99 (West 2008)) and was committed for institutional care in a secure facility.
Respondent appeals, arguing that the trial court erred in: (1) denying his motion to dismiss
the commitment petition for the State’s failure to hold a probable cause hearing within the
time period required by the Act; (2) denying his motion to strike two potential jurors for
cause; (3) upholding the jury’s finding that he was a SVP; and (4) committing him to
institutional care. We affirm the trial court’s judgment.
¶2 FACTS
¶3 On June 3, 2010, while respondent was serving a prison sentence, the State filed a
petition under the Act to have respondent committed to institutional care as a SVP. In the
petition, the State requested that a probable cause hearing be held within 72 hours, as
required by the Act. On the following day, June 4, the parties appeared in court on the
petition, and the State announced that it was ready to proceed on a probable cause hearing.1
Respondent’s attorney, however, requested a continuance so that he could have additional
time to prepare for the hearing. The trial court granted that request and continued the case
until June 8.
¶4 On June 7, respondent’s attorney filed a motion to substitute judge as a matter of right.
The parties appeared in court on June 8 for the scheduled probable cause hearing and the
1
Unless otherwise noted, all of the dates listed in this section of the facts are from 2010.
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matter was continued for reassignment based upon respondent’s motion to substitute. On
August 17, prior to reassignment, respondent’s attorney filed a motion to dismiss the petition,
alleging that respondent was denied due process because the State failed to hold a probable
cause hearing within the time period required by the Act. Two days later, an order was
entered by the trial court reassigning the case to another judge, as requested in respondent’s
motion to substitute.
¶5 On September 1, a hearing was held on the motion to dismiss before the newly assigned
trial judge. After listening to the arguments of the attorneys, the trial court denied
respondent’s motion to dismiss the SVP petition. That same day, a probable cause hearing
was held, and the trial court found that probable cause existed to believe that respondent was
a SVP.
¶6 A jury trial was held on the SVP petition in May of 2011. The jury selection process
involving three of the potential jurors, J.J., G.H., and L.S., is of relevance to this appeal.
During initial questioning by the trial court, all three potential jurors indicated that: (1) they
would not use sympathy, bias, or prejudice in making their decision; (2) they would wait
until they heard all of the evidence, arguments, and instructions before making up their
minds; (3) they would follow the law, even if they personally disagreed with it; (4) they
understood that respondent was presumed not to be a SVP; (5) they understood that the State
had the burden of proof beyond a reasonable doubt; (6) they understood that respondent did
not have to present any evidence; (7) they understood that respondent did not have to testify
and that respondent’s failure to testify could not be held against him; and (8) there was no
reason why they could not be fair and impartial.
¶7 One of the initial panels of prospective jurors included prospective juror J.J. When J.J.
was question by respondent’s attorney regarding the circumstances of respondent’s prior sex
offenses, the following discussion took place:
“[RESPONDENT’S ATTORNEY]: [I]s there anybody here that if they heard
evidence that somebody had been convicted of sex with minor females on more than one
occasion that they would feel like, well, that[’s] all I–that would already make my mind
up for me, I wouldn’t have to hear anything else? If you feel that way, raise your hand.
PROSPECTIVE JUROR [J.J.]: I might have a little trouble. You said five year old.
[RESPONDENT’S ATTORNEY]: Okay. [J.J.]; is that right?
PROSPECTIVE JUROR [J.J.]: Yes.
[RESPONDENT’S ATTORNEY]: Just let me go into that a little bit further, [J.J.]
PROSPECTIVE JUROR [J.J.]: I wouldn’t. I don’t think I would if you were talking
about teens but–
[RESPONDENT’S ATTORNEY]: Teens. Is there–is there a cutoff point there? If
they were under ten or above ten or–and I appreciate your honesty.
PROSPECTIVE JUROR [J.J.]: I don’t know. I just–when I heard the word ‘five’,
that might bother me.
[RESPONDENT’S ATTORNEY]: Okay. Would it–and the Judge asked you earlier,
he said is there anybody here that has any prejudices or biases or–and that may be a
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prejudice where you’re saying, okay, if I hear about sex and a five-year-old girl, I’ve
already made my mind up. Is that the way you would feel? Is that what you’re saying?
PROSPECTIVE JUROR [J.J.]: I think it possibly could be, yes.”
¶8 After questioning some of the other potential jurors questions, respondent’s attorney
asked J.J. some additional questions:
“[RESPONDENT’S ATTORNEY]: Okay. And, [J.J.], I’m going to follow-up with
that question. Was there a cutoff point there? I mean, you said–
PROSPECTIVE JUROR [J.J.]: I don’t know. I just know when I hear things that
have happened to little, little children–
[RESPONDENT’S ATTORNEY]: Uh-huh.
PROSPECTIVE JUROR [J.J.]: –I have a hard time with it.
[RESPONDENT’S ATTORNEY]: Okay. And is there any age that you feel like a–
PROSPECTIVE JUROR [J.J.]: I can’t say that there is, but I don’t feel that way
about–when we talk about, I don’t know, ten, maybe in the class it wouldn’t bother me.
[RESPONDENT’S ATTORNEY]: Yeah.
PROSPECTIVE JUROR [J.J.]: I think I could handle it pretty much. I’m just not
positive about if a little bitty one was involved.”
¶9 When the panel of prospective jurors was submitted to the attorneys, respondent’s
attorney moved to strike J.J. for cause. The trial court denied that request, finding that J.J.’s
answers suggested that J.J. “could hear the evidence and be fair and impartial.” Respondent’s
attorney used one of his peremptory challenges to strike J.J. from the panel.
¶ 10 A later panel of prospective jurors included prospective juror G.H. When G.H. was
questioned by respondent’s attorney in relation to respondent’s prior sex offenses, the
following conversation ensued:
“[RESPONDENT’S ATTORNEY]: Do you have any problem with–you hear
testimony that somebody’s–[respondent’s] been convicted [of] three prior incidents
involving underage girls. Would that cause you to–
PROSPECTIVE JUROR [G.H.]: He’s been convicted of three others?
[RESPONDENT’S ATTORNEY]: If you heard that in the testimony that he’d
already been convicted.
PROSPECTIVE JUROR [G.H.]: Yeah, it would make me kind of lean towards this
one too, yes.
[RESPONDENT’S ATTORNEY]: Okay. Now, you said ‘lean towards’. But let me
back up a minute. You said ‘this one too’. You understand he’s not charged with another
crime; right?
PROSPECTIVE JUROR [G.H.]: Right.
[RESPONDENT’S ATTORNEY]: You understand that the testimony of the doctors
will be something that you have to decide in regards to that. But my question to you then
would be if you knew before we even get started that he’s been convicted of three
offenses involving young ladies under 16, does that put you in a situation where you’re
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saying I can’t be fair?
PROSPECTIVE JUROR [G.H.]: If he’s done it three times before, what’s saying he
wouldn’t do it again?
[RESPONDENT’S ATTORNEY]: Okay. And you would feel that way without even
hearing from the doctors before we get started?
PROSPECTIVE JUROR [G.H.]: I suppose if I was here, I’d listen to that, yes.
[RESPONDENT’S ATTORNEY]: Okay. What I’m hearing, what I’m hearing,
[G.H.], is that you’re saying you would listen to it but has that alone–
PROSPECTIVE JUROR [G.H.]: I would be as fair as I possibly could be, yes.
[RESPONDENT’S ATTORNEY]: Okay. But those convictions would have a pretty
big impact?
PROSPECTIVE JUROR [G.H.]: (Indicating.)”
¶ 11 When the panel of prospective jurors was submitted to the attorneys for approval,
respondent’s attorney moved to strike G.H. for cause. The trial court denied that request.
Respondent’s attorney used one of his peremptory challenges to strike G.H. from the panel.
¶ 12 Another panel of prospective jurors included prospective juror L.S. During questioning,
L.S. indicated that she had certain relatives and acquaintances in law enforcement but that
those relationships would not cause her to be unfair. L.S. also indicated that she had a general
knowledge of the SVP law because, as a health care worker, she was a mandatory reporter
of child abuse. L.S. indicated, however, that none of that would cause her to be unfair. L.S.
served on a jury the previous week and stated that her jury service taught her that her
judgment could be persuaded to change over the course of deliberations. When the panel of
prospective jurors was submitted to the attorneys for approval, respondent’s attorney did not
move to strike L.S. for cause. Respondent’s attorney had used up all of his peremptory
challenges by that point and did not ask for additional challenges or object in any way to L.S.
As a result, L.S. was seated on respondent’s jury.
¶ 13 During the evidence phase of the trial, the State presented the testimony and the written
reports of two expert witnesses: Dr. John Arroyo and Dr. Raymond Wood. Dr. Arroyo, a
licensed psychologist, testified that he worked for Wexford Health Services, which had a
contract with the Department of Corrections (DOC), to provide evaluations. As part of his
job, Arroyo evaluated incarcerated individuals, who were approaching their release date, to
determine if they were SVPs under the SVP Act. Arroyo described his background and
experience to the jury and was qualified by the trial court as an expert in clinical psychology.
Arroyo had completed about 67 SVP evaluations in his career and had found about 27 people
to be SVPs. Arroyo testified that he reviewed respondent’s records, including his DOC
master file, police reports, court records, probation and parole reports, criminal history,
mental health records, and treatment records.
¶ 14 On the witness stand, Arroyo discussed respondent’s criminal history at length. Arroyo
noted that respondent was born in 1978 and had been convicted of three sex offenses during
his lifetime: criminal sexual abuse in 1995, when he was 17; aggravated criminal sexual
abuse in 2000, when he was 21; and a second aggravated criminal sexual abuse in 2005,
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when he was 27. In the 1995 case, respondent was accused of forced sexual intercourse with
a 16-year-old special-needs girl. In the 2000 case, respondent was accused of having sexual
intercourse with a 13-year-old special-needs girl. Respondent admitted that he had done so,
but stated that he thought the girl was older. There was no indication of force in that case.
In the 2005 case, respondent was accused of fondling a five-year-old girl’s vagina for sexual
arousal. Respondent denied committing that offense. Respondent also had convictions in a
2007 case and in a 2009 case for failure to register as a sex offender and had other non-sex-
related convictions and one other possible sex-related conviction.
¶ 15 In addition to respondent’s criminal history, Arroyo also discussed respondent’s
treatment history regarding both substance-abuse treatment and sex-offender treatment. The
reports indicated that respondent had a substance-abuse problem as to both alcohol and
drugs. Respondent had previously attended substance-abuse treatment on more than one
occasion but had never successfully completed treatment. With regard to sex-offender
treatment, respondent had attempted treatment several times between 1995 and 2009 but had
never successfully completed it. Respondent’s treatment was terminated for such things as
failure to comply and failure to attend, because of his substance-abuse problems or run-ins
with police, or due to his own voluntary termination of treatment because his parole or
probation had ended. According to Arroyo, respondent had attended treatment through
approximately six different treatment providers over the past several years.
¶ 16 In May of 2010, as part of the evaluation process, Arroyo attempted to meet with
respondent. After Arroyo explained the process to respondent, respondent declined to
participate in an in-person interview with Arroyo based upon the advice of his attorney.
Arroyo testified, however, that he was able to complete an evaluation without an in-person
interview because he had detailed records regarding respondent.
¶ 17 Based upon his evaluation, Arroyo diagnosed respondent as having the following mental
conditions: (1) paraphilia not otherwise specified (NOS), nonconsent; and (2) personality
disorder NOS with antisocial and narcissistic features. Arroyo explained those diagnoses to
the jury and also explained the factors that led him to reach those diagnoses. Arroyo testified
that paraphilia NOS, sexually attracted to nonconsenting persons, was a congenital or
acquired condition affecting the emotional or volitional capacity that predisposed a person
to engage in acts of sexual violence. Arroyo stated further that the personality disorder, on
its own, would not predispose a person to engage in acts of sexual violence, but that the two
disorders combined (paraphilia and personality disorder) would make a person’s condition
worse than each disorder individually.
¶ 18 Arroyo used two actuarial tests (actuarials) to assist him in determining whether
respondent was likely to reoffend, the Static-99R and the Minnesota Sex Offender Screening
Tool-Revised (MnSOST-R). Arroyo explained those actuarials to the jury, told the jury how
they were used, and informed the jury as to why he used those particular actuarials, rather
than other actuarials that were available. On each of the actuarials, respondent scored in a
range that placed him at a high risk to reoffend. In addition to the actuarials, Arroyo also
considered dynamic risk factors (factors which can change over time) and protective risk
factors. Arroyo explained that those factors were not taken into account in the actuarials and
could tend either to increase or decrease a person’s risk level. Arroyo explained those factors
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to the jury and told the jury how he weighed those factors in respondent’s case. Based on his
evaluation of respondent, Arroyo opined that respondent was substantially probable to
engage in future acts of sexual violence.2 Arroyo opined further that respondent met the
criteria for being a SVP as defined in the SVP Act. Arroyo’s findings were memorialized in
a written report, which was admitted into evidence as an exhibit at trial.
¶ 19 Dr. Raymond Wood testified as the second expert for the State. Wood stated that he was
a clinical psychologist who, under a contract with the Department of Human Services,
evaluated persons for SVP commitment. Wood testified about his background and
experience and was qualified by the trial court as an expert in psychology. Wood had
completed approximately 370 SVP evaluations in his career. Wood conducted his evaluation
in this case after the SVP petition was filed. In conducting his evaluation, Wood reviewed
respondent’s records (DOC master file, police records, court records, treatment records, etc.)
and conducted a clinical interview of respondent.
¶ 20 The interview took place in September and October 2010. Wood discussed with
respondent the prior offenses, the prior treatment, and other pertinent matters. Respondent
answered all of Wood’s questions, but his answers were vague at times and seemed to be
guarded. Wood also conducted certain psychological tests on respondent.
¶ 21 Wood diagnosed respondent as having the following mental conditions: paraphilia NOS,
with mixed features; alcohol and cocaine dependence, in a controlled environment; cannabis
dependence; and antisocial personality disorder. Wood explained to the jury what factors led
him to reach those diagnoses. Wood stated that all of the conditions, except possibly
cannabis dependence, were congenital or acquired conditions affecting the emotional or
volitional capacity that would predispose a person to engage in acts of sexual violence.
¶ 22 Wood used two actuarials, the Static-99 and the MnSOST-R, to evaluate respondent’s
risk of reoffending. Based on the actuarials and the other information he considered, Wood
stated that respondent was a high risk to reoffend on the Static-99 (the highest category) and
also in the highest category to reoffend on the MnSOST-R, listed as “refer,” meaning that
there was a presumption that the person would be referred for commitment. Wood explained
to the jury why he used those particular actuarials as compared to others that were available.
In making his assessment, Wood used the actuarials to establish a baseline and then
considered other factors that were not part of the actuarials that were known to be associated
with reoffending. Based on his evaluation, Wood opined that there was a substantial
probability that respondent would engage in future acts of sexual violence. Wood opined
further that respondent was a SVP as defined in the SVP Act. Wood prepared a written
examination report, which was admitted into evidence as an exhibit at the trial.
¶ 23 Defendant did not testify on his own behalf but did present the written report and
testimony of one expert witness: Dr. Kirk Witherspoon. Witherspoon testified that he was
a clinical psychologist in private practice and was licensed in both Illinois and Iowa.
Witherspoon described his background and experience for the jury and stated that over the
2
All of the opinions given by the experts in this case were given to a reasonable degree of
psychological certainty.
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last 13 years, he had completed hundreds of SVP evaluations all over the state. Witherspoon
was qualified by the trial court as an expert witness in clinical psychology.
¶ 24 Before he met with respondent, Witherspoon looked at the discovery in the case, which
included respondent’s criminal history, mental health records, and medical information. After
reviewing the records to get a general picture, Witherspoon interviewed respondent to
determine his current mental status and performed extensive testing. According to
Witherspoon, respondent’s reading comprehension was at about a fifth-grade level or a little
better. Witherspoon found that respondent had attention deficit problems and mild learning
problems. Witherspoon told the jury that attentional problems were important because they
had symptoms or behaviors that could overlap with antisocial kinds of behaviors, such as
trouble keeping a job or staying on task. Witherspoon commented that certain antisocial
behaviors were also the primary symptoms of adult attention deficit hyperactivity disorder
(ADHD), which was typically treatable with medication.
¶ 25 Witherspoon recounted respondent’s history of sexual offenses and sexually related
offenses. Witherspoon noted that in the three sex offenses, all three victims claimed that
respondent used force, but respondent claimed that he did not use force. In the most recent
offense, with the five-year-old girl, respondent denied that the offense happened, and the
girl’s mother suggested that the incident could not have happened.
¶ 26 Witherspoon saw signs that respondent was suffering from anxiety and depression.
Witherspoon gave respondent the Millon Clinical Multiaxial Inventory-III test (MCMI-III)
to aid him in determining a mental diagnosis and to help him rule out competing problems.
The test showed that respondent had moderate antisocial tendencies and also substance abuse
difficulties. Another test that Witherspoon gave respondent indicated that the antisocial
tendencies were secondary to the substance abuse problems. In Witherspoon’s opinion,
respondent’s chronic alcohol and substance abuse was the cause of most of respondent’s
other problems.
¶ 27 One of the main tests that Witherspoon gave respondent for sexual psychopathology was
the Multidimensional Inventory of Development, Sex, and Aggression test (MIDSA). Based
on the results of the MIDSA test, Witherspoon found that respondent did not have sexual
psychopathology, deviant sexual tendencies, or deviant sexual interests, at this point.
¶ 28 Witherspoon diagnosed respondent as having the following mental disorders:
polysubstance dependence, ADHD, a reading disorder, and a moderate antisocial personality
disorder (APD). In Witherspoon’s opinion, none of those diagnoses would constitute a
congenital or acquired condition that would predispose a person to reoffend.
¶ 29 Witherspoon testified that a SVP evaluation was too complicated to do without meeting
personally with the subject and stated that to fail to do so was not ethically recommended.
According to Witherspoon, APD, by itself, was not a mental health disorder that would
predispose a person to commit future sex offenses. Rather, APD was an intensifier for certain
kinds of sexual offending, if a person had a sexual disorder.
¶ 30 To determine respondent’s risk level, Witherspoon used the following tests or actuarials:
the Static-2002R, the Sexual Violence Risk-20 (SVR-20), and the Structured Risk
Assessment (SRA). Witherspoon explained to the jury why he used those particular tests as
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compared to other tests or actuarials that were available. Based upon the tests he performed
and his evaluation, Witherspoon opined that respondent’s risk to reoffend was moderate or
slightly below moderate and explained to the jury how he reached that conclusion.
Witherspoon opined further that respondent’s risk of reoffending, in an absolute sense, was
quite low percentage-wise. Witherspoon did not diagnose respondent as having paraphilia
and stated that respondent did not meet the diagnostic criteria for that mental disorder.
Witherspoon did not opine as to whether respondent was a SVP as defined in the SVP Act
and stated that such an opinion was a legal conclusion, which was not a proper opinion to be
drawn by someone in his profession.
¶ 31 At the conclusion of the trial, the jury rendered a verdict, finding that respondent was a
SVP. Respondent filed a motion for new trial, raising numerous issues. One of the issues
raised in the motion was that the trial court erred in denying respondent’s request to strike
prospective jurors J.J. and G.H. for cause. After a hearing, the trial court denied the motion
for new trial. In so doing, as to the jury selection issue, the trial court stated:
“Regarding the preempts, I think all the jurors who came in after hearing what the
case was about, they all had a gut feeling as to how they felt about it, and I would–I
would say it was probably running 95 percent against [respondent], you know. I think
there was only one guy who came in and he thought the whole law was un-American and
it should be thrown out on its ear, but–but notwithstanding that gut reaction after hearing
what the case was about, every juror was given an opportunity to be rehabilitated; to ask
whether or not–notwithstanding their emotional first reaction–if they intellectually could
set that aside; review the evidence; give the [r]espondent the benefit of the presumption
that he was not a sexually violent person and to require the State to meet its burden. And
they all, I believe, were successfully rehabilitated. And if they weren’t, I bumped them.
If they did, I left it to you to decide that, notwithstanding that, if your gut reaction to them
was sufficient to give a peremptory challenge. And I don’t think there was anything
manifestly unfair or abusive in those rulings.
I don’t think there is such a thing as a perfect trial, but there are fair trials and unfair
trials. I think this was a fair trial, and I’m going to deny the motion for a new trial.”
¶ 32 In July 2011, a dispositional hearing was held in this case. The State presented a
supplemental report from Dr. Wood regarding treatment options for respondent. The trial
court also considered Dr. Witherspoon’s earlier written report and all of the evidence
presented at the trial. Respondent testified on his own behalf. At the conclusion of the
hearing, the trial court found that the appropriate placement for respondent was institutional
care in a secure facility. In reaching that conclusion, the trial court stated:
“I have to respect the jury’s verdict on that and consider that that is the fact, that you
are a sexually violent person and you are likely to engage in future acts of sexual
violence. It’s what the jury found.
With that now being the–the framework of where I’m at, I will tell you that I–I want
to let you out. I want to give you the most minimally invasive, least restrictive disposition
that I can consistent with the jury verdict. I want you to have the least restrictive
alternative. I want you to be on conditional release. But what I want, like a jury
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might–their gut reaction has to be subject to intellectual review. And I have to consider
the facts in the–Dr. Wood’s report that in you prior attempts at what I would call
conditional release or conditional discharge with outpatient treatment, it was marked by
an ambivalent attitude, poor attendance, superficial cooperation. The treatment was never
truly internalized. Nominal participation and poor compliance with court orders. That
does not sound very well. And your prior performance on conditional discharge,
probation, and the treatment is dismal, I mean, really. Part of that was your fault and
maybe part of it wasn’t.
[The attorney for the State] talked about no completion of treatment, and Dr.
Witherspoon in his report noted that that kind of cuts both ways. He thought that–he said
there are some treatment providers who believe you never complete treatment. It’s like
being an alcoholic. You know, you’re never over it. You’re just in a permanent state of
rehabilitation, and you’ll never be–you’ll never be cured. And so how you’ve completed
or if you complete treatment or not isn’t maybe the best marker in my estimation; but
certainly, there’s a continuum of not having had any treatment and starting to internalize
the treatment and being not just superficially cooperative, but being fully cooperative that
I think are markers that we need to see so that we know you’re making adequate process
[sic] towards the conditional release.
I think that–you know, and I do want to review the case and I think we’re required
to review the case every year.
***
So in–in six months we’re going to review the case; but until I have those markers
and some assurances from your–your treatment provider, I believe that the appropriate
disposition at this point would be placement with the Department of Health and Human
Services at the treatment and detention facility pending progress towards a conditional
release into the community.”
¶ 33 Respondent appealed, raising numerous issues.
¶ 34 ANALYSIS
¶ 35 As his first point of contention on appeal, respondent argues that the trial court erred in
denying his motion to dismiss the SVP petition for the State’s failure to hold a probable
cause hearing within the time period required by section 30(b) of the Act. Respondent
acknowledges that the Act does not specify a remedy for such a failure but argues that the
time requirement is similar to the time requirement for a preliminary hearing under the Code
of Criminal Procedure of 1963 (Code) (725 ILCS 5/109-3.1(b) (West 2008)), and that the
appropriate remedy for a violation of the time requirement under the Act is a dismissal, just
as it is for a violation of the time requirement under the Code (see 725 ILCS 5/114-1(a)(11)
(West 2008)). The State asserts that the motion to dismiss was properly denied because: (1)
nothing in the Act or the Illinois Constitution requires a dismissal under these circumstances;
(2) reading an automatic dismissal into the Act would require the release of SVPs for reasons
that the legislature could not have intended; and (3) respondent cannot complain that he did
not receive a prompt probable cause hearing because all of the delay was attributable to him.
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Thus, the State argues that we should affirm the trial court’s ruling.
¶ 36 Our decision on this issue involves a mixed standard of review. The determination of
whether to grant or deny a respondent’s motion to dismiss a SVP petition for failure to hold
a probable cause hearing within the time period required under the Act is a determination that
rests within the sound discretion of the trial court and will not be reversed on appeal absent
an abuse of discretion. See People v. Clarke, 231 Ill. App. 3d 504, 508 (1992) (appellate
court applied an abuse-of-discretion standard of review to trial court’s decision on motion
to dismiss charge in criminal case for failure to hold a preliminary hearing within the time
period required under the Code). However, to the extent that we are called upon to interpret
the Act in ruling upon this issue, that question is one of law, which is subject to a de novo
standard of review on appeal. See People v. Donoho, 204 Ill. 2d 159, 172 (2003).
¶ 37 In construing the provisions of the Act, we will apply the well-settled rules of statutory
construction. The fundamental rule of statutory construction is to ascertain and give effect
to the intent of the legislature. People v. Dabbs, 239 Ill. 2d 277, 287 (2010). The most
reliable indicator of that intent is the plain and ordinary meaning of the language of the
statute itself. Dabbs, 239 Ill. 2d at 287. In determining the plain meaning of statutory terms,
a court should consider the statute in its entirety and keep in mind the subject the statute
addresses and the apparent intent of the legislature in enacting the statute. Dabbs, 239 Ill. 2d
at 287; In re Detention of Lieberman, 201 Ill. 2d 300, 308 (2002) (in determining legislative
intent, a court may consider not only the language of the statute itself, but also the reason and
necessity for the law, the evils sought to be remedied, and the purpose to be achieved); 5
ILCS 70/1.01 (West 2008) (in construing a statute, “[a]ll general provisions, terms, phrases
and expressions shall be liberally construed in order that the true intent and meaning of the
General Assembly may be fully carried out”). If the statutory language is clear and
unambiguous, it must be applied as written, without resorting to further aids of statutory
construction. Dabbs, 239 Ill. 2d at 287. A court may not depart from the plain language of
the statute and read into it exceptions, limitations, or conditions that are not consistent with
the express legislative intent. Town & Country Utilities, Inc. v. Illinois Pollution Control
Board, 225 Ill. 2d 103, 117 (2007). In addition, “[b]ecause all provisions of a statutory
enactment are viewed as a whole [citations], words and phrases should not be construed in
isolation, but must be interpreted in light of other relevant provisions of the statute
[citations].” Lieberman, 201 Ill. 2d at 308. If possible, each word, clause, and sentence must
be given reasonable meaning and not rendered superfluous. Lieberman, 201 Ill. 2d at 308.
It is presumed that the legislature did not intend absurdity, inconvenience, or injustice.
Lieberman, 201 Ill. 2d at 309.
¶ 38 Section 30(b) of the SVP Act provides:
“Whenever a petition is filed under Section 15 of this Act, the court shall hold a hearing
to determine whether there is probable cause to believe that the person named in the
petition is a sexually violent person. If the person named in the petition is in custody, the
court shall hold the probable cause hearing within 72 hours after the petition is filed,
excluding Saturdays, Sundays and legal holidays. The court may grant a continuance of
the probable cause hearing for no more than 7 additional days upon the motion of the
respondent, for good cause. If the person named in the petition has been released, is on
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parole, is on mandatory supervised release, or otherwise is not in custody, the court shall
hold the probable cause hearing within a reasonable time after the filing of the petition.
At the probable cause hearing, the court shall admit and consider all relevant hearsay
evidence.” 725 ILCS 207/30(b) (West 2008).
The Act does not specify a remedy for a failure to hold a probable cause hearing within the
time period required by section 30(b). The question before this court, therefore, is whether
a violation of the time requirement in section 30(b) for a probable cause hearing on a SVP
petition requires a dismissal of the SVP petition.
¶ 39 Although there is no Illinois case directly on point on this issue, we find the Wisconsin
case of In re Commitment of Beyer, 2001 WI App 167, 633 N.W.2d 627, to be persuasive.
Illinois courts have previously noted that the Wisconsin SVP Act is very similar to the
Illinois SVP Act and have looked to decisions of the Wisconsin courts for guidance in
construing the Illinois SVP Act. See, e.g., In re Detention of Hardin, 238 Ill. 2d 33, 46
(2010); People v. Masterson, 207 Ill. 2d 305, 324-25 (2003); In re Detention of Hayes, 321
Ill. App. 3d 178, 188 (2001). In Beyer, the Wisconsin Court of Appeals found that the timing
requirement for probable cause hearings under the Wisconsin SVP Act was directory, rather
than mandatory, and that the failure to comply with that requirement did not require a
dismissal of the SVP petition. Beyer, 2001 WI App 167, ¶¶ 8-15, 633 N.W.2d 627. In
reaching that conclusion, the Beyer court noted that to rule otherwise would undermine the
Act’s objectives to treat convicted sex offenders who were at high risk to reoffend and to
protect the public from such offenders. Beyer, 2001 WI App 167, ¶ 10, 633 N.W.2d 627. The
Beyer court also pointed out that requiring dismissal in such a case could allow a person
subject to a SVP petition to use the time requirement as a loophole to avoid commitment by
making a last-minute motion for judicial substitution. See Beyer, 2001 WI App 167, ¶¶ 12-
13, 633 N.W.2d 627. The Beyer court noted further that it was the individual’s due process
right to have a hearing within a reasonable time that protected a respondent from having the
time limit extended indefinitely. Beyer, 2001 WI App 167, ¶ 14, 633 N.W.2d 627.
¶ 40 As a matter of statutory construction, we reach the same conclusion here as the
Wisconsin court reached in Beyer. See Beyer, 2001 WI App 167, ¶¶ 8-15, 633 N.W.2d 627.
To require dismissal in the present case would be to read a condition into the Act that the
legislature did not expressly set forth and would allow for the release of possible SVPs in a
manner that could not reasonably have been intended by the legislature. See Beyer, 2001 WI
App 167, ¶¶ 8-11, 633 N.W.2d 627. We conclude, therefore, that the failure to hold a
probable cause hearing within the time period set forth in section 30(b) does not require the
automatic dismissal of a SVP petition. See Beyer, 2001 WI App 17, ¶¶ 8-15, 633 N.W.2d
627. We also conclude that the time period involved in the present case was not unreasonable
under the circumstances in terms of due process. See Beyer, 2001 WI App 167, ¶ 15, 633
N.W.2d 627. Thus, we find that the trial court did not commit an abuse of discretion in
denying respondent’s motion to dismiss the SVP petition in the present case. See Beyer, 2001
WI App 167, ¶ 15, 633 N.W.2d 627.
¶ 41 In reaching that conclusion, we note that all of the delays in the present case were either
attributable to, or acquiesced in by, respondent. That reason alone would support upholding
the trial court’s denial of the motion to dismiss. See In re Detention of Swope, 213 Ill. 2d
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210, 217 (2004). It would be unfair to allow a party to complain on appeal about an error
which that party induced the trial court to make or to which that party consented. Swope, 213
Ill. 2d at 217.
¶ 42 As his second point of contention on appeal, respondent argues that the trial court erred
in denying his motion to strike prospective jurors J.J. and G.H. for cause. Respondent asserts
that he was prejudiced by the denial in that he had to use two of his peremptory challenges
to strike J.J. and G.H. and had no peremptory challenges left to strike a third objectionable
juror, L.S., who ended up serving on the jury. Based on the alleged error, respondent asks
that we reverse the trial court’s judgment and remand this case for a new trial. The State
asserts that respondent’s jury-composition claim is meritless because: (1) it was forfeited
when respondent failed to object in the trial court to L.S. being seated on the jury; (2) it was
not against the manifest weight of the evidence for the trial court to conclude that J.J. and
G.H. could be fair and impartial; and (3) even if the trial court’s ruling was erroneous,
respondent cannot show that the error was prejudicial to him, since there is no indication that
L.S. was biased against respondent.
¶ 43 A trial court’s determination of whether a person is competent to sit as a juror will not
be reversed on appeal unless it is against the manifest weight of the evidence. People v. Cole,
54 Ill. 2d 401, 414 (1973). A finding is against the manifest weight of the evidence only if
it is clearly apparent from the record that the trial court should have reached the opposite
conclusion or if the finding itself is unreasonable, arbitrary, or not based upon the evidence
presented. Best v. Best, 223 Ill. 2d 342, 350 (2006). Under the manifest-weight standard,
deference is given to the trial court as finder of fact because the trial court is in a better
position than the reviewing court to observe the conduct and demeanor of the parties and
witnesses, or in this case, the potential jurors. See Best, 223 Ill. 2d at 350. “A reviewing court
will not substitute its judgment for that of the trial court regarding the credibility of
witnesses, the weight to be given to the evidence, or the inferences to be drawn.” Best, 223
Ill. 2d at 350-51.
¶ 44 One of the purposes of voir dire is to filter out those potential jurors who are either
unable or unwilling to be fair and impartial. See People v. Pendleton, 279 Ill. App. 3d 669,
674 (1996). A person is incompetent to sit as a juror if his state of mind is such that a party
will not receive a fair and impartial trial with that person as a member of the jury. Cole, 54
Ill. 2d at 413. The determination of juror competency is not a purely objective determination,
and the trial court may consider a statement of a potential juror as evidence of that person’s
state of mind. Cole, 54 Ill. 2d at 414. In making such a determination, the trial court should
consider the potential juror’s entire voir dire examination and should not single out any
certain statement. See People v. Peeples, 155 Ill. 2d 422, 462-63 (1993). The burden of
showing that a person is not competent to sit as a juror falls on the party challenging the
juror. Cole, 54 Ill. 2d at 413. Mere suspicion of bias or partiality is not sufficient to disqualify
a potential juror. Cole, 54 Ill. 2d at 415.
¶ 45 Under federal constitutional law, “as long as a defendant receives a fair and impartial
trial, Federal due process is not denied where a defendant exhausts all of his peremptory
challenges and used one of them to remove a juror who should have been removed for
cause.” Pendleton, 279 Ill. App. 3d at 675 (citing Ross v. Oklahoma, 487 U.S. 81, 88 (1988)).
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In addition, the well-settled rule in Illinois is that a court’s failure to remove a juror for cause
is grounds for reversal only if prejudice can be shown; that is, only if the party challenging
the juror has exercised all of his peremptory challenges and an objectionable juror was
allowed to sit on the jury. See Spies v. Illinois, 122 Ill. 1, 258 (1887); Pendleton, 279 Ill.
App. 3d at 675. Although the Illinois Constitution guarantees the right to an impartial jury,
it does not guarantee the right to choose a jury that is sympathetic to a specific party or to a
specific legal theory. See Pendleton, 279 Ill. App. 3d at 677.
¶ 46 In the present case, even if we were to assume that the trial court’s denial of respondent’s
motion to remove J.J. and G.H. for cause was erroneous, we would still have to find that the
trial court’s ruling in that regard did not constitute reversible error because respondent failed
to establish that he suffered any prejudice from the trial court’s ruling. See Spies, 122 Ill. at
258; Pendleton, 279 Ill. App. 3d at 677. Although respondent had to use up his peremptory
challenges to remove J.J. and G.H. and makes the vague assertion on appeal that doing so
allowed a third objectionable juror, L.S., to be seated on the jury, the record contains no
evidence that L.S. was an improper juror or that L.S. should have been excused. Rather, the
record before us indicates overwhelmingly that L.S. had the ability to be a fair and impartial
juror. Because respondent cannot show prejudice, his argument on this issue must be
rejected. See Spies, 122 Ill. at 258; Pendleton, 279 Ill. App. 3d at 677. We need not address
the other assertions that were made by the State on this issue in support of the trial court’s
ruling.
¶ 47 As his third point of contention on appeal, respondent argues that the trial court erred in
denying his motion for new trial based upon the sufficiency of the evidence. Respondent
asserts first that the State failed to prove beyond a reasonable doubt that he suffered from a
requisite mental disorder. In making that assertion, respondent points out that his own expert
witness vehemently disagreed with the opinions given on the mental-disorder element by the
State’s expert witnesses. Respondent asserts second that the State also failed to prove beyond
a reasonable doubt that it was substantially probable that he would engage in future acts of
sexual violence. In making that assertion, respondent contends that the opinions of the
State’s expert witnesses were flawed on that element in that they were based upon outdated
actuarial tests regarding respondent’s risk of reoffending. The State disagrees with
respondents various assertions and contentions and argues that the evidence was sufficient
to support the jury’s finding that respondent was a SVP.
¶ 48 When faced with a challenge to the sufficiency of the evidence in a SVP proceeding, the
reviewing court must view the evidence in a light most favorable to the State and determine
whether any rational trier of fact could have found the required elements proven beyond a
reasonable doubt. In re Detention of Welsh, 393 Ill. App. 3d 431, 454 (2009); see also People
v. Collins, 106 Ill. 2d 237, 261 (1985) (sets forth the standard of review for a sufficiency-of-
the-evidence claim in a criminal case). The reviewing court will not retry a SVP case on
appeal. In re Tittlebach, 324 Ill. App. 3d 6, 11 (2001). Rather, it is the responsibility of the
trier of fact to evaluate the credibility of the witnesses, to weigh and resolve conflicts in the
evidence, and to determine the reasonable inferences to be drawn from the evidence.
Tittlebach, 324 Ill. App. 3d at 11. A reviewing court will not reverse a determination that a
person is a SVP unless the evidence is so improbable or unsatisfactory that it leaves a
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reasonable doubt as to that matter. See People v. Jackson, 232 Ill. 2d 246, 281 (2009) (sets
forth the standard that applies to a sufficiency-of-the-evidence claim in a criminal case).
¶ 49 To establish that a person is a SVP, the State must prove the following three elements
beyond a reasonable doubt: (1) that the person has been convicted of a sexually violent
offense; (2) that the person has a requisite mental disorder; and (3) that the person is
dangerous to others because the mental disorder creates a substantial probability that the
person will engage in future acts of sexual violence. See 725 ILCS 207/5(f), 15(b), 35(d)(1)
(West 2008); Welsh, 393 Ill. App. 3d at 454. Respondent here challenges only the second and
third elements: the mental-disorder element and the substantial-probability element. Under
the Act, a mental disorder is defined as a “a 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 2008). In addition, substantial probability has been
defined by the courts as meaning “much more likely than not.” See, e.g., Hayes, 321 Ill. App.
3d at 188.
¶ 50 Having reviewed the record in the instant case, we find that the evidence, considered in
the light most favorable to the State, was sufficient to prove beyond a reasonable doubt both
the mental-disorder element and the substantial-probability element. See Welsh, 393 Ill. App.
3d at 454; Collins, 106 Ill. 2d at 281. The State’s two expert witnesses testified that they
reviewed extensive records regarding respondent; conducted evaluations and assessments on
respondent, either in person or based upon the extensive records; and opined based upon all
of that information that respondent had a requisite mental disorder and that the mental
disorder created a substantial probability that respondent would engage in future acts of
sexual violence. Although those opinions were contradicted by the opinion of respondent’s
expert witness, it was for the jury to weigh the credibility of the evidence and to resolve any
conflicts therein. See Tittlebach, 324 Ill. App. 3d at 11. We will not retry respondent on
appeal or substitute our judgment for that of the jury on this matter. See Tittlebach, 324 Ill.
App. 3d at 11. The evidence presented was not so improbable or unsatisfactory as to leave
a reasonable doubt that respondent was a SVP. See Jackson, 232 Ill. 2d at 281. Respondent’s
assertions and contentions to the contrary raise only matters that go to the weight to be given
to particular expert testimony and do not undermine the sufficiency of the evidence. See
Welsh, 393 Ill. App. 3d at 455; Tittlebach, 324 Ill. App. 3d at 11.
¶ 51 As his final contention on appeal, respondent argues that the trial court erred in
committing him to institutional care in a secure facility, rather than placing him on
conditional release. Respondent asserts that in reaching its decision, the trial court failed to
consider some of the relevant statutory factors and focused instead upon certain improper
evidence. Respondent asks that we reverse the trial court’s commitment order. The State
disagrees with respondent’s assertions and argues that the trial court’s commitment order was
proper and should be affirmed.
¶ 52 Pursuant to section 40 of the Act, when a person is found to be a SVP, he shall be
committed to the Department of Human Services. See 725 ILCS 207/40(a) (West 2008). The
commitment order shall specify either institutional care in a secure facility or conditional
release. 725 ILCS 207/40(b)(2) (West 2008). In determining the appropriate placement for
a SVP, the court may consider such factors as: (1) the nature and circumstances of the
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person’s behavior; (2) the person’s mental history and present mental condition; (3) where
the person will live and work; and (4) what arrangements are available to ensure that the
person has access to and will participate in necessary treatment. 725 ILCS 207/40(b)(2)
(West 2008); In re Detention of Erbe, 344 Ill. App. 3d 350, 374 (2003). A trial court’s
decision to commit a SVP to institutional care in a secure facility is reviewed on appeal for
an abuse of discretion. Erbe, 344 Ill. App. 3d at 374. An abuse of discretion occurs only
where the trial court’s decision is arbitrary, fanciful, or unreasonable, or where no reasonable
person would take the view adopted by the trial court. Erbe, 344 Ill. App. 3d at 374.
¶ 53 In the present case, evidence regarding the appropriate statutory factors was before the
trial court when it made its decision to commit respondent to institutional care in a secure
facility. The trial court’s comments at the commitment hearing indicate that the trial court
considered that evidence and weighed the factors accordingly. Contrary to respondent’s
assertion on appeal, we do not believe that it was improper for the trial court to consider
respondent’s prior participation in treatment and respondent’s prior compliance with orders
and terms of probation. In determining the appropriate placement for respondent, the trial
court’s ruling was not arbitrary, fanciful, or unreasonable and did not constitute an abuse of
discretion.
¶ 54 For the foregoing reasons, we affirm the judgment of the circuit court of Knox County.
¶ 55 Affirmed.
¶ 56 PRESIDING JUSTICE SCHMIDT, specially concurring:
¶ 57 I concur in the judgment and also concur in the majority’s opinion with the exception of
the second issue raised by respondent and relating to his motion to strike two potential jurors
for cause. Supra ¶¶ 42-46.
¶ 58 I would find the issue forfeited. Respondent had used all of his peremptory challenges.
At no time did respondent ask for other peremptories or indicate that he would have excused
juror L.S. The rationale applied by at least two appellate courts makes sense to me and I
believe it should be applicable here. “In the present case, the defense exhausted its
peremptory challenges, but it did not indicate to the trial court that it was being forced to
accept an objectionable juror because of the error in overruling the prior challenge for cause.
Notifying the trial court of this fact would have served the salutary purpose of giving the
court a final opportunity to cure the alleged error by exercising its inherent power to grant
the defense an extra peremptory challenge. Because the defense in the present case did not
indicate that it was being forced to accept an objectionable juror as a result of the trial court’s
error, we hold that the error in denying the challenge for cause was waived.” (Internal
quotation marks omitted.) People v. Green, 199 Ill. App. 3d 927, 930-31 (1990) (quoting
People v. Washington, 104 Ill. App. 3d 386, 392 (1982)).
¶ 59 “Illinois law is clear that both an objection and a written posttrial motion raising an issue
are necessary to preserve any error for appellate review.” Wilbourn v. Cavalenes, 398 Ill.
App. 3d 837, 855 (2010). Respondent made no objection to L.S. during voir dire. He
admitted, during posttrial arguments, that there “was no issue with cause with L.S.” He did
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not request additional peremptories; neither did he voice concern with the trial court after
using his final peremptory that the process would somehow deny him a fair trial. If
respondent has preserved this error for review, then anytime a party at trial has a challenge
for cause denied, all he or she need do is make sure to exhaust all available peremptory
challenges and then later go to the appellate court, arguing that one juror or another would
not have been seated but for the trial court’s error in denying the challenge for cause. This
strikes me as being contrary to both the letter and spirit of the rules for preserving alleged
errors for appellate review by first alerting the trial court of the alleged error and giving the
trial court an opportunity to cure any alleged error.
¶ 60 I would find the issue forfeited and, therefore, do not join the majority’s analysis with
respect to this issue.
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