People v. Brown (In re Brown)
| Decision Date | 03 November 2021 |
| Docket Number | 1-19-1606 |
| Citation | 2021 IL App (1st) 191606,198 N.E.3d 278,459 Ill.Dec. 488 |
| Parties | IN RE COMMITMENT OF Leroy BROWN, (The People of the State of Illinois, Petitioner-Appellee, v. Leroy Brown, Respondent-Appellant). |
| Court | United States Appellate Court of Illinois |
Michael R. Johnson, Kate E. Levine, Ian C. Barnes, and Logan C. Bierman, of Johnson & Levine LLC, of Chicago, for appellant.
Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Erin M. O'Connell, Assistant Attorneys General, of counsel), for the People.
¶ 1 Following a jury trial, respondent Leroy Brown was found to being a sexually violent person (SVP) under the Sexually Violent Persons Commitment Act (SVP Act) ( 725 ILCS 207/1 et seq. (West 2016)). Following a dispositional hearing, respondent was placed on conditional release with the Department of Human Services (DHS). Under the SVP Act, a person may be found to be an SVP after having been convicted of a sexually violent offense and is found dangerous because he or she suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence. Id. § 5(f).
¶ 2 On appeal, respondent argues that (1) the trial court erred in denying his request to ask prospective jurors if they could be fair and impartial knowing that respondent had been convicted of a sexually violent offense against a child, (2) the trial court erred in denying his motion for a mistrial after the State attempted to introduce inadmissible testimony that respondent had failed questions on a polygraph examination, (3) the trial court improperly restricted his cross-examination of the State's witnesses regarding the limitations and controversy surrounding the diagnosis of other specified paraphilic disorder, nonconsenting persons (OSPD nonconsent), and (4) the trial court erred in allowing the State to introduce irrelevant and prejudicial testimony about the Department of Corrections statistics detailing the percentage of sex offenders that are screened and not referred for civil commitment.
¶ 3 In 2011, the State filed a petition to commit respondent as an SVP under the SVP Act. In the petition, the State alleged that respondent had been diagnosed with paraphilia not otherwise specified and a personality disorder not otherwise specified, nonconsent, nonexclusive, and that this mental disorder was a congenital or acquired condition affecting respondent's emotional or volitional capacity, which predisposes respondent to commit acts of sexual violence. In June 2011, the trial court conducted a probable cause hearing and found probable cause for the SVP proceedings. An amended SVP petition was filed in October 2017 and alleged that respondent suffered from OSPD, nonconsenting females, in a controlled environment and an antisocial personality disorder.
¶ 4 Prior to trial, both parties filed multiple motions in limine. Specifically, respondent moved to preclude all testimony about purported statistics on the Department of Corrections's screening process for SVP. At the hearing on the motion, the prosecutor indicated that the doctors would not testify to the percentages, but would testify to the screening process. Respondent asked for clarification of what would be allowed, and the court responded:
¶ 5 In one of its motions in limine , the State asked the court to preclude any testimony or argument that would suggest or infer that OSPD was not a legitimate diagnosis. At the hearing, defense counsel objected, stating that she did not have an objection if the motion was limited to a Frye1 issue, but arguing that counsel "should be able to cross on that diagnosis." The prosecutor responded that respondent's counsel could question whether respondent has the diagnosis, but was specifically asking to bar questioning of the legitimacy of the diagnosis in general. The court granted the motion, but indicated that defense counsel could request a sidebar and the court would revisit it.
¶ 6 Also, before trial, respondent filed a request to ask the venire several proposed jury questions for voir dire , including the following question: The State objected to this proposed question and argued that the prospective jurors were already going to be asked about the fact that respondent had been convicted of a sexually violent offense and whether they can be fair and impartial. The trial court agreed with the State and declined to ask respondent's proposed question.
¶ 7 The following evidence was introduced at respondent's November 2017 jury trial. Dr. David Suire testified as an expert in forensic and clinical psychology, specializing in sex offender evaluations. He was employed as a clinical psychologist and SVP evaluator with the Illinois Department of Human Services (DHS). During the examination of Dr. Suire's background, the prosecutor asked him how many individuals are referred for commitment in Illinois that he has examined. Dr. Suire answered that "the referral rate is usually two to two and a half percent would be referred forward, so 97, 98 percent would not" be referred. Defense counsel objected and following a sidebar, the trial court overruled the objection.
¶ 8 Dr. Suire was assigned to evaluate respondent as part of the standard rotation with SVP evaluators. He reviewed respondent's police record, court records, a prior SVP evaluation, Department of Corrections records, and records from the Rushville treatment and detention facility (TDF). He also reviewed current records in the weeks prior to trial. Dr. Suire attempted to interview respondent in 2011 at the TDF, but respondent declined to participate in an interview. Dr. Suire testified that he had "plenty of documentation" in respondent's case to complete the evaluation without the interview.
¶ 9 Dr. Suire prepared his first report on July 30, 2011, and an addendum was prepared on September 19, 2013. The purpose of the addendum was to update the diagnosis because the new version of the Diagnostic and Statistical Manual of Mental Disorders (DSM) was released and he wanted the original diagnosis to meet the standards of the new DSM. The new version is DSM-V and was still in operation at the time of the trial.
¶ 10 Respondent's records dated back to 1976, and he was arrested 12 times between 1976 and 1981. The arrests included burglary, armed robbery, unlawful use of a weapon, theft, and drug charges. He was convicted 11 times. Dr. Suire noted that the armed robbery was most concerning because of the aggression that was relevant to the SVP assessment. Based on his review, it did not appear that respondent successfully completed probation. Respondent also received jail time in that period and was subsequently paroled, but he did not appear to successfully complete his parole. Dr. Suire found this history relevant to show that sanctions were not effective in getting respondent to cease this behavior and actual supervision was not successful in "controlling his criminal urges."
¶ 11 In January 1984, while on parole for armed robbery, respondent committed a sexually violent offense. Respondent then fled to Minnesota, and there, he committed another sexually violent offense in June 1984. He was convicted of armed robbery, rape, and burglary in Minnesota and sentenced to 11 years on one count and 7 years, 11 months on another count. Dr. Suire observed that the close proximity of the two sexually violent offenses "goes to the intensity of the urges to commit sexual offenses."
¶ 12 In the Minnesota case, respondent broke into the house of a woman he previously knew and used a knife to force her to have sexual contact with him. He held a knife to her throat, removed her clothing, and placed his mouth on her vagina. He attempted to penetrate her vagina with his penis, but he was unable to attain an erection. Respondent became frustrated and attempted to cut the victim's vagina with the knife. The victim tried to take the knife from respondent and suffered cuts on her hand. Respondent then ended the sexual offense and demanded money. He took her purse and left. The sexual offense occurred while a child was present. Respondent has admitted to this offense and described the knife as 12 inches in length. Dr. Suire stated that this conviction was a sexually violent offense under the SVP Act.
¶ 13 Respondent was later charged for the January 1984 Illinois offense while he was incarcerated in Minnesota. He was subsequently convicted of rape and sentenced to 20 years. In that offense, respondent broke into a woman's home and forced her to the ground. He then forced sexual intercourse by penetrating her with his penis. He did not use a condom, and he ejaculated. Respondent admitted to this crime. He said the victim was crying, but at the time he did not care. Later, respondent felt bad about it.
¶ 14 Dr. Suire noted the similarity in the two offenses where he broke into the houses of the victims. Respondent reported that he knew both victims. He used a weapon in one and force in the other. Respondent was paroled after he completed his sentence in the Illinois case, but he did not successfully...
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