In re Detention of Morris , 2022 IL App (4th) 210366-U ( 2022 )

NOTICE
This Order was filed under
2022 IL App (4th) 210366-U FILED
October 13, 2022
Supreme Court Rule 23 and is
NO. 4-21-0366 Carla Bender
not precedent except in the
4th District Appellate
limited circumstances allowed
IN THE APPELLATE COURT Court, IL
under Rule 23(e)(1).
OF ILLINOIS
FOURTH DISTRICT
In re DETENTION OF GREGORY MORRIS ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Cass County
Petitioner-Appellee, ) No. 98MR17
v. )
Gregory Morris, ) Honorable
Respondent-Appellant). ) Timothy J. Wessel,
) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court.
Presiding Justice Knecht and Justice Cavanagh concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed the trial court’s denial of respondent’s motions for
the appointment of (1) an independent evaluator and (2) an independent
polygrapher.
¶2 In 1999, a jury adjudicated respondent, Gregory Morris, a sexually violent person
(SVP), as defined by section 5(f) of the Sexually Violent Persons Commitment Act (Act) (725
ILCS 207/5(f) (West 1998)). Following the verdict, the trial court committed respondent to the
custody of the Illinois Department of Human Services (DHS) until such time as he was no longer
sexually violent. Thereafter, respondent was annually reexamined by an evaluator as required by
the Act. See id. § 55.
¶3 In May 2016, respondent pro se filed a motion requesting the appointment of an
independent polygrapher to review data associated with respondent’s failed polygraph
examination. In January 2021, respondent, through counsel, filed a motion requesting the
appointment of a qualified expert to perform an independent examination of respondent,
pursuant to section 55(a) of the Act (725 ILCS 207/55(a) (West 2020)). The trial court denied
both motions.
¶4 Respondent appeals, arguing that the trial court erred by denying his motions for
the appointment of an (1) independent evaluator and (2) independent polygrapher. Respondent
also raised various challenges to the constitutionality of the Act. We disagree and affirm.
¶5 I. BACKGROUND
¶6 A. The Procedural History
¶7 In 1987, respondent pleaded guilty to aggravated criminal sexual assault (Ill. Rev.
Stat. 1987, ch. 38, ¶ 12-14) of two women in two separate incidents and was sentenced to six
years in prison for each offense, with the sentences to run concurrently. In 1994, he again
pleaded guilty to two counts of aggravated criminal sexual assault (720 ILCS 5/12-14 (West
1992)), and the trial court sentenced him to six years in prison for each offense, with the
sentences to run concurrently.
¶8 In 1999, a jury adjudicated respondent an SVP as defined by section 5(f) of the
Act (725 ILCS 207/5(f) (West 1998)). Following that verdict, the trial court committed
respondent to the care, custody, and control of DHS until such time as he was no longer sexually
violent. Respondent appealed, and this court affirmed. In re Detention of Morris, No. 4-99-0454
(Nov. 13, 2000) (unpublished order under Illinois Supreme Court Rule 23).
¶9 Thereafter, respondent became subject to reexamination every 12 months by an
examiner. See 725 ILCS 207/55 (West 1998). In 2002, in an effort to enter a mandatory
treatment program, respondent agreed to submit to a polygraph examination to “investigate his
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truthfulness regarding whether or not he sexually assaulted [the victim in his 1994 conviction,
L.P.]” The polygraph examiner determined that the test was inconclusive on that issue because
respondent tried to control his breathing. That same year, respondent moved for the appointment
of an independent polygrapher, arguing that DHS would not allow him to progress in treatment
unless he either (1) admitted the offense against L.P. or (2) passed a polygraph exam. The trial
court denied the motion, and this court affirmed, holding that the trial court did not have the
authority to appoint a polygrapher. In re Detention of Morris, No. 4-02-0893 (Sept. 20, 2003)
(unpublished order under Illinois Supreme Court Rule 23) (Morris II). A second polygraph exam
was conducted in 2005. This time, the examiner concluded that respondent was not truthful when
he claimed he had consensual sex with L.P.
¶ 10 In 2016, respondent submitted to a penile plethysmograph (PPG) evaluation to
assess deviant and nondeviant sexual arousal related to “rape stimuli.” According to the
evaluator, “[respondent] did not demonstrate significant levels of arousal to any of the 12
scenarios presented: healthy or deviant.”
¶ 11 Following respondent’s annual reevaluation in 2016, respondent moved for and
was appointed an independent evaluator pursuant to section 55(a) of the Act (725 ILCS
207/55(a) (West 2014)). He also moved for an independent polygrapher to verify the results of
the 2005 polygraph exam because, he argued, it was “the SVP[ ] program’s protocol to ‘fail’ any
detainee who submits to the polygraph while denying guilt.” In 2017, appointed counsel
supplemented that motion, which remained pending until June 2021.
¶ 12 In 2018, respondent petitioned for discharge pursuant to section 65(b)(1) of the
Act (725 ILCS 207/65(b)(1) (West 2018)), claiming he was no longer an SVP. However,
following a trial, the jury found beyond a reasonable doubt that he remained an SVP, and this
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court affirmed. In re Detention of Morris, 2021 IL App (4th) 190750-U, ¶ 88 (Morris III).
¶ 13 B. The 2019 and 2020 Reevaluations
¶ 14 In 2019 and 2020, Dr. Deborah Nicolai, Psy.D., conducted respondent’s
reevaluations. In both evaluations she concluded that respondent remained an SVP. After each
reevaluation and based upon Nicolai’s findings, the State moved for findings of no probable
cause to believe that respondent was no longer an SVP. The trial court conducted these probable
cause hearings together in 2021 because of the COVID-19 pandemic.
¶ 15 In respondent’s reevaluations, which were introduced as evidence at the probable
cause hearing, Nicolai opined that respondent remained an SVP and suffered from sexual sadism
disorder in a controlled environment and narcissistic personality disorder with antisocial features.
In reaching her opinion, Nicolai considered (1) interviews she conducted with respondent,
(2) respondent’s treatment records, which included the polygraph examinations, (3) reports from
women who had dated respondent, (4) respondent’s criminal and sexual history, including the
three sexually violent offenses for which he was convicted—namely, one in 1987 in which he
drove a woman to a cabin in the woods and slammed her head on the floor until he could rape
her; another in which he bound a woman’s hands, beat her, and raped her in a car on the side of
the road; and the last, in 1994 in which he grabbed a woman, L.P., by the arm, forced her into the
bedroom, tore her hair out, and then raped her vaginally, anally, and orally—and (5) an
uncharged sexual offense, which was investigated in 1997, involving the disappearance of a
17-year-old girl who two years later reported to an investigator that respondent tied her up and
raped her for six days.
¶ 16 In the 2020 reevaluation, Nicolai opined that respondent was substantially
probable to engage in acts of sexual violence based on an adjusted risk assessment, in which she
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considered the respondent’s scores on actuarial instruments—namely, the Static-99R and
Static-2002R—and the effect of dynamic and protective risk factors. She also found that
respondent “has numerous risk factors which are external to the actuarial instruments used in this
re-examination but are empirically demonstrated to be associated with increased risk for sexual
recidivism.”
¶ 17 Regarding age, Nicolai did not find respondent’s age to be a protective factor
because (1) research showed that any decreased risk with advanced age becomes significant only
at age 60 and older and (2) respondent was 57 years old. Additionally, Nicolai pointed out that
one study found that “the effect of age at release depended on offense history.”
¶ 18 Nicolai noted in the report that at one point during a previous interview,
respondent stated, “I am not a sadist. I do not have a mental disorder.” He explained that one of
the offenses happened after he had been “looking for a prostitute,” but when he realized the
victim was not a prostitute, he decided “[he] was going to [have nonconsensual sex with her]
anyway.” Respondent added that “[i]t would have been more arousing if she consented.”
¶ 19 In the 2019 interview, Nicolai reported that respondent “did not feel there were
any personal changes he needed to make.” During the 2020 interview, when discussing treatment
progress, respondent was “sarcastic, uncooperative, answering questions with questions,”
causing Nicolai to end the interview after only 20 minutes.
¶ 20 Nicolai concluded the report by stating the following.
“During this review period, [respondent] remained in Phase II of the
five-phase treatment program ***. He was removed from Power to Change in part
due to his failure to recognize any treatment barriers or need for personal change.
He attended ancillary groups and remained on treatment status ***. His overall
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treatment approach will not serve to lower his risk of sexual offense recidivism.
He continues to possess many outstanding treatment needs. He has not yet begun
to address his offense cycle nor has he obtained any interventions skills. He
repeatedly denied any reason to make any attempt at personal change.
[Respondent] has not made sufficient progress in treatment to be recommended
for Conditional Release.” (Emphasis in original.)
¶ 21 In January 2021, respondent moved for the appointment of an independent
evaluator, arguing that (1) Nicolai was not independent and (2) respondent was “virtually
incapable of rebutting” her report without an expert.
¶ 22 C. The Probable Cause Hearing
¶ 23 In June 2021, the trial court conducted a probable cause hearing on the State’s
2019 and 2020 motions for findings that there was no probable cause to believe that respondent
was no longer an SVP. At that hearing the court also considered (1) respondent’s motion, filed in
2016, for an independent polygrapher and (2) his motion for an independent evaluator.
¶ 24 1. Respondent’s Argument
¶ 25 At the probable cause hearing, respondent argued that the appointment of an
independent polygrapher was needed to support respondent’s claim of innocence because the
2002 polygraph was inconclusive and the 2005 polygraph showed that respondent was not being
truthful. Respondent’s counsel further stated, “[Respondent] plans to maintain his innocence in
regards to that offense, but it certainly—it certainly impacts his treatment and his progress in
groups and other areas at the facility. So that is the reason for the request for independent
polygraph.”
¶ 26 Regarding the motion for the appointment of an independent evaluator,
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respondent argued that Nicolai did not properly consider respondent’s age when calculating his
risk to reoffend. Instead, Nicolai used his age at release, which was 33 when he was released
from prison for his index offense. Accordingly, respondent argued, if his current age had been
considered, his score on the evaluation would have been lower—correlating to a lower risk to
reoffend. Respondent asserted that Nicolai’s “report [was] biased, at least in terms of not
accounting for his age.” Respondent further argued that another expert was needed to conduct a
new report because (1) “nobody can agree on [respondent’s] history” and (2) Nicolai did not give
appropriate credit in her report to the results of the PPG respondent had taken in 2016.
¶ 27 Following respondent’s argument, the trial court asked respondent whether it was
correct that (1) the 2002 polygraph was rendered inconclusive because respondent had attempted
to control his breathing and (2) the 2005 polygrapher opined that respondent was not being
truthful when he answered the formulated test questions. Respondent answered in the
affirmative.
¶ 28 2. The State’s Argument
¶ 29 The State argued that an additional polygraph would not make any difference to
the probable cause hearing and the trial court likely did not have authority under the Act to
appoint an independent polygrapher. The State continued, “It is really a treatment matter, not
really an evaluation matter[.]”
¶ 30 Regarding the appointment of an independent evaluator, the State argued that
respondent “has not made any progress over the last two treatment periods we are looking at. He
remains in phase 2, the disclosure phase, of the 5-phase treatment program. If anything, he has
done worse this last period.”
¶ 31 3. The Trial Court’s Decision
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¶ 32 The trial court first addressed the respondent’s motion for the independent
polygrapher. The court stated that because it already had a conclusive test following an
inconclusive test, it did not feel it was necessary to order a third test to confirm the second test.
Further, the court expressed doubt that it had the power to order a third test. The court then stated
the following.
“Likewise, on the motion for independent expert ***. We are not close to
starting to have a conversation about whether [respondent] should be released.
***.
[Respondent’s] counsel did make some interesting points, which I
considered in this, about some inconsistencies about the age. I mean I do have
questions. At times I understand on these Static-99R tests that it does say age of at
[sic] release from index sex offense, and he is getting scored at his age which he
would have been released from—I assume from the Illinois Department of
Corrections. Now how his current age plays into that, I would think it plays
something into it. ***.
So these are the tests that they use. I know they are reliable tests ***. So
as they score, I’m going to take their scoring into consideration, but I don’t
believe that is enough for a motion for an independent expert at this time.”
¶ 33 Ultimately, the trial court denied both motions and found there was not probable
cause that respondent was no longer an SVP.
¶ 34 This appeal followed.
¶ 35 II. ANALYSIS
¶ 36 Respondent appeals, arguing that the trial court erred by denying his motions for
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the appointment of an (1) independent evaluator and (2) independent polygrapher. Respondent
also raised various challenges to the constitutionality of the Act. We disagree and affirm.
¶ 37 A. The Applicable Law and the Standard of Review
¶ 38 Once a person has been committed as an SVP under the Act, DHS is required to
reexamine the person annually to determine whether: “(1) the person has made sufficient
progress in treatment to be conditionally released and (2) the person’s condition has so changed
since the most recent periodic reexamination *** that he or she is no longer a sexually violent
person.” 725 ILCS 207/55(a) (West 2020). The Act further provides that “[a]t the time of a
reexamination under this Section, the person who has been committed may retain or, if he or she
is indigent and so requests, the trial court may appoint a qualified expert or a professional person
to examine him or her.” Id.¶ 39 Because the decision to appoint an independent expert under the Act is a matter
that rests within the trial court’s discretion, appellate courts review the matter for an abuse of
discretion. In re Commitment of Kirst, 2015 IL App (2d) 140532, ¶ 33, 40 N.E.3d 1215. “An
abuse of discretion will be found only where the trial court’s ruling is arbitrary, fanciful,
unreasonable, or where no reasonable person would take the view adopted by the trial court.”
People v. Hall, 195 Ill. 2d 1, 20, 743 N.E.2d 126, 138 (2000).
¶ 40 If the person neither filed a petition for discharge nor affirmatively waived the
right to do so, the court conducts a “probable cause hearing consist[ing] only of a review of the
reexamination reports and arguments on behalf of the parties” to determine if there is probable
cause to believe that the committed person is no longer an SVP. 725 ILCS 207/65(b)(1) (West
2020).
¶ 41 B. This Case
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¶ 42 1. The Motion for an Independent Evaluator
¶ 43 Initially, we note that respondent does not dispute the trial court’s ultimate
determination at the probable cause hearing that there is not probable cause to believe respondent
is no longer a sexually violent person. Defendant challenges only the trial court’s denial of his
motions for an independent evaluator and independent polygraph exam.
¶ 44 Regarding the independent evaluator, respondent argues that the trial court should
have appointed an independent evaluator to rebut “the [S]tate evaluator’s biased report.” We
disagree.
¶ 45 “While the Act allows for the appointment of an expert for an indigent person, it
certainly does not require a court to take such action. [Citations.] A respondent may be entitled to
funds to hire an expert witness where expert testimony is deemed crucial to a proper defense.”
(Internal quotation marks omitted.) Kirst, 2015 IL App (2d) 140532, ¶ 33. That testimony is
crucial when, (1) without the expert testimony, respondent’s case would be prejudiced or (2) the
court would have found differently had an independent evaluator been provided. People v.
Botruff, 212 Ill. 2d 166, 177, 817 N.E.2d 463, 469 (2004).
¶ 46 Here, respondent neither filed a petition for discharge nor affirmatively waived
his right to do so. Accordingly, at the probable cause hearing, the trial court considered only
Nicolai’s report and the parties’ arguments when determining whether probable cause existed to
revoke respondent’s SVP status. See 725 ILCS 207/65(b)(1) (West 2020).
¶ 47 At the probable cause hearing, respondent’s argument boiled down to his wanting
another expert to examine him simply for the possibility of obtaining a different result. Indeed,
respondent conceded that an independent evaluator’s “opinion may or may not be favorable.”
Respondent offered no evidence that the appointment of an independent evaluator would be
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crucial to his defense. Instead, he merely argued that Nicolai’s report was biased because it used
respondent’s age at release rather than his current age when calculating his risk to reoffend using
the evaluation tools. He explained that if an older age was used, then the risk to reoffend would
have been lower. However, respondent did not say whether a different evaluator would have
used his current age rather than his age at release.
¶ 48 Respondent further argued that “nobody can agree on [respondent’s] history,”
which, based on the context of his argument, related to his maintaining his innocence of
committing aggravated criminal sexual assault in 1994, throughout his treatment. Respondent
also argued that Nicolai did not give sufficient weight to respondent’s performance on his 2016
PPG test. Again, however, respondent does not explain how a different evaluator would have
helped his defense or what it even means to have respondent’s “history cleared up.” (We opine
that respondent is likely tiptoeing around proclaiming his innocence at the probable cause
hearing, which we further note, stems from convictions in which respondent pleaded guilty.)
¶ 49 On the other hand, the State pointed out and the trial court acknowledged that
respondent had made minimal, if any, treatment progress and remained in phase two of the
five-phase treatment program. Moreover, respondent was removed from the Power to Change
Group due to his failure to recognize the existence of any treatment barriers or any need for
personal change. Indeed, respondent clearly did not take his treatment seriously as evidenced by
his refusing to cooperate and making sarcastic remarks to Nicolai during the 2020 clinical
interview—namely, responding to direct questions with, for example, “You’re the evaluator, you
tell me,” “Why does that matter, they aren’t psychotropics,” and “Does it matter what I say.”
Respondent also stated multiple times that the treatment process was “pointless.”
¶ 50 This record shows that respondent provided no basis for the trial court to appoint
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an independent evaluator, let alone establish that he would have been prejudiced without an
independent evaluator’s appointment. “It is rational not to appoint an independent evaluator
when a respondent has shown no need for one, especially during perfunctory reexamination
proceedings where the respondent has not affirmatively opted to petition for discharge.” Botruff,
212 Ill. 2d at 177-78. Accordingly, we conclude that the trial court did not abuse its discretion by
denying respondent’s motion.
¶ 51 2. The Motion for an Independent Polygrapher
¶ 52 Respondent also argues that the trial court erred by denying his motion for an
independent polygrapher. However, as the State points out, because this court has already
decided this issue in a previous appeal, we will not again address the merits of respondent’s legal
argument. See Goering v. Midwest Neurology, Ltd., 2021 IL App (2d) 200735, ¶ 27 (“The
law-of-the-case doctrine bars relitigation of an issue that has already been decided in the same
case such that the resolution of an issue presented in a prior appeal is binding and will control
upon remand in the trial court and in a subsequent appeal before the appellate court.”).
¶ 53 In Morris II, we stated the following:
“The Act does not require persons to submit to polygraph examinations.
This polygraph examination is instead an element of respondent’s treatment that
is to be provided by DHS. The trial court does not have the authority to appoint
specific individuals to oversee treatment provided in DHS facilities. [In re
Detention of Hayes, 321 Ill. App. 3d 178, 195, 747 N.E.2d 444, 459 (2001).] That,
however, is the relief respondent is seeking—an order telling DHS who to hire to
oversee a (second) polygraph examination. As such, the trial court did not have
the authority to grant the relief respondent requested. We therefore affirm the trial
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court’s dismissal of respondent’s petition [for the appointment of an independent
polygrapher] on that basis.”
¶ 54 Here, respondent’s motion seeks the same relief as his previous petition—namely,
for DHS to hire an independent polygrapher to oversee a (third) polygraph examination. Because
this court has already decided this issue in respondent’s case, we will not do so again.
Accordingly, respondent’s motion to appoint an independent polygrapher is barred by the law of
the case doctrine, and the trial court properly denied the motion
¶ 55 3. Respondent’s Constitutional Claims
¶ 56 The remainder of respondent’s claims can be characterized as a vague and general
facial challenge to the constitutionality of the Act—for example, "[r]espondent-[a]ppellant
asserts that both the Illinois legislature and the Illinois Attorney General’s office are aware that
the SVP act is unconstitutional in the manner in which it was drafted and by its nature[.]”
Because the record shows that respondent did not raise these arguments before the trial court,
they are subject to forfeiture. See In re Commitment of Chester, 2017 IL App (1st) 160979, ¶ 28,
87 N.E.3d 338 (“[I]t is well settled that issues not raised in the trial court are forfeited and may
not be raised for the first time on appeal[.]”). In addition, respondent’s brief does not comply
with the requirements as set forth in Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020).
“Reviewing courts are entitled to have the issues clearly defined, to be cited pertinent authorities
and are not a depository in which an appellant is to dump *** argument and research as it were,
upon the court.” In re Estate of Kunz, 7 Ill. App. 3d 760, 763, 288 N.E.2d 520, 523 (1972).
¶ 57 Accordingly, because respondent neither raised the issues in the trial court nor
complied with Rule 341(h)(7), respondent has forfeited his challenges to the constitutionality of
the Act.
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¶ 58 III. CONCLUSION
¶ 59 For the reasons stated, we affirm the trial court’s judgment.
¶ 60 Affirmed.
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