People v. Gavin (In re Commitment of Gavin)

• Decision Date: 30 June 2014
• Docket Number: No. 1–12–2918.,1–12–2918.
• Citation: 14 N.E.3d 1163
• Parties: In re COMMITMENT OF Edward GAVIN (The People of the State of Illinois, Petitioner–Appellee, v. Edward Gavin, Respondent–Appellant).
• Court: United States Appellate Court of Illinois

14 N.E.3d 1163

In re COMMITMENT OF Edward GAVIN (The People of the State of Illinois, Petitioner–Appellee,

v. Edward Gavin, Respondent–Appellant).

No. 1–12–2918.

Appellate Court of Illinois, First District, Third Division.

June 30, 2014.

Rehearing Denied July 28, 2014.

Daniel T. Coyne, Matthew Daniels, Michael Johnson, and Ian Barnes, all of Law Offices of Chicago-Kent College of Law, of Chicago, for appellant.

Lisa Madigan, Attorney General, of Chicago (Michael M. Glick and Lindsay Beyer Payne, Assistant Attorneys General, of counsel), for the People.

OPINION

Presiding Justice HYMAN delivered the judgment of the court, with opinion.

Proceedings under the Sexually Violent Persons Commitment Act (SVP Act) identify individuals who are dangerous due to mental disorders that would predispose them to sexual violence and forces them into treatment for their own good and for the safety of society. 725 ILCS 207/1 et seq. (West 2010). Respondent Edward Gavin appeals a jury's finding that he is a sexually violent person under the SVP Act, arguing (i) he was improperly limited during his voir dire of the jury; (ii) the evidence failed to prove he met the definition of a sexually violent person; (iii) the State's opening statement and closing arguments were improper and so prejudicial as to require a new trial; and (iv) the trial court erred when it would not hold a proper dispositional hearing.

¶ 2 We reverse and remand for a new trial on the grounds that the State in both its opening remarks and closing arguments made sarcastic and otherwise highly improper and prejudicial statements about Gavin and his attorney that denied Gavin of his right to a fair trial.

¶ 3 BACKGROUND

¶ 4 As is common with commitment proceedings under the SVP Act, only expert witnesses testified. We recite the facts with an understanding that the experts testified without personal knowledge of most of the facts other than some statements made by Gavin during an interview. See Ill. R. Evid. 801(d)(2)(A) (eff. Jan. 1, 2011). What follows summarizes the experts' testimony.

¶ 5 Gavin, born in 1958, began using alcohol when he was only eight years old. He has a history of alcohol, marijuana, heroin, and cocaine use. He had been sent to juvenile detention by the time he was 14, and later dropped out of high school. In 1975, at age 17, Gavin raped a 14–year–old girl. That same day, he attempted to rape a 21–year–old woman. He pleaded guilty to both the rape and the attempted rape, and was given a four- to six-year sentence. He was later released on parole. In 1980, Gavin was referred for substance abuse treatment, but it is unclear whether he attended any treatment sessions. That year, Gavin tried to rape another woman and was subsequently charged, convicted, and sentenced to 12 years in the penitentiary on the attempted rape. He received six months of sex offender treatment while in the Department of Corrections (DOC), but did not complete the program.

¶ 6 In 1988, having been released early, Gavin went to a hotel where he spent the day with prostitutes, drinking, and using drugs. Physically unable to finish sex with the prostitutes, he raped and robbed a 48–year–old hotel maid. Charged with aggravated criminal sexual assault and attempted armed robbery, he pleaded guilty and received a 15–year sentence.

¶ 7 While on parole in 1996, Gavin attended monthly sex offender treatment for a year, but did not complete the program. Later, Gavin committed a burglary for which he was convicted and returned to the custody of the DOC.

¶ 8 During his incarcerations, prison authorities issued Gavin 36 disciplinary write-ups for breaking prison rules, 3 of them for sexual misconduct. DOC records indicate that Gavin made inappropriate comments to female staff members, fondled his genitals in front of a female doctor, refused to cover his genitals while in the hospital, asked female staffers to have a long-term relationship with him, and—in 1991—forced his way into the office of the female school principal, attacked her, fondling her and kissing her neck, until a correctional officer and two inmates pulled him off. Authorities put Gavin in segregation between 12 and 15 times.

¶ 9 In 2006, the State filed a petition to commit Gavin as a sexually violent person under the SVP Act. During pretrial proceedings, the court placed Gavin in the custody of the Department of Human Services (DHS). Since then, he has not received any tickets for sexual misconduct, though he was found to have two pornographic videos and marijuana. He also has refused sex offender treatment at DHS.

¶ 10 The circuit court conducted a jury trial on the petition in 2012. Before trial, Gavin submitted proposed jury questions for voir dire, including, “You will hear evidence that Mr. Gavin has been convicted of indecent liberties with a child. How would that affect your decision in this case?” The trial court did not allow Gavin to inquire about his specific arrests and convictions, but allowed him to ask the jury whether they could be fair given his four convictions for “sexually violent offenses.” When asked during voir dire, the jurors indicated that these convictions would not affect their fairness.

¶ 11 During opening statement, the State attempted to argue the facts surrounding Gavin's previous sex crimes as though those facts would be in evidence.

“MS. WELKIE [Assistant State's Attorney]: * * * [The experts] look at these patterns of behavior that they see in this individual's background. And the patterns of behavior, just some of them, I will give you now, that they relied on to form their opinion.

* * * [W]hat you're going to hear during the testimony today from the doctors is that on a day in 1975 * * * this respondent committed not one but two sexually violent offenses. In the same location in a CHS building, in a Chicago public housing building, in an elevator. The first one happens at about 4:50 in the evening. A 21–year–old women [sic ] gets on the elevator, the respondent is in the elevator with her, and he rips off her blouse and fondles her breast. * * * Just over two hours later in the exact same elevator, in the exact same building, he attacks a 14 year old. This time he's able to stop the elevator between floors and he's able to make the 14 year old undress, and he rapes her in the elevator.”

Gavin objected to the State's portrayal, and the court overruled him. The State continued:

“MS. WELKIE: * * * In 1980, you're going to hear in the same CHA housing building he * * * grabbed a 15 or 16 year old girl—

MR. COYNE [Gavin's counsel]: We would object.

MS. WELKIE: —and he began to rape—

THE COURT: Overruled.

MS. WELKIE: —her.

THE COURT: Actually sustained. Rephrase.

MS. WELKIE: When he was in the CHA building, the same building, that he was in where he committed the first two from 1975 he's on parole for them, a girl who is either 15 or 16 years old, he assaults her. He grabs her and he—

MR. COYNE: Same objection, Judge.

MS. WELKIE: —and she is screaming. He pulls her down and—

THE COURT: Overruled.

MS. WELKIE: —and he is attempted to penetrate her vagina with his penis. This is viewed by the Chicago Police Department officers. They come up to try to aid her. He is so intent his—what you're gonna hear is that—

MR. COYNE: Objection.

MS. WELKIE: —his sexual urges—

THE COURT: All right. Let's have a side bar.”

At side bar, the court sustained Gavin's objection, and instructed the State to tell the jury that these facts of Gavin's sex crimes would only come in to show the basis of the State's experts' opinions. Gavin requested a curative instruction, which the trial judge refused because he did not believe the jury had been prejudiced. The State then retold the facts of Gavin's 1980 conviction:

“MS. WELKIE: So 1980, the doctors are going to tell you that they relied on the fact that in his 1980 conviction, he's in the same Chicago Housing Authority, that he grabs a victim a 15 or 16 year old girl, he pulls her down. He's trying to rape her. He is trying to place his penis in his [sic] vagina. That sexual urge that the doctors are going to tell you about in their diagnosis as being evidenced by this.

And the doctors are going to tell you that in the evidence of the sexually violent offense, the police approach. They on view see him sexually assaulting her or attempting to sexually assault this girl. They have to beat him over the head to get him off of her. That is what the evidence through the doctors and what the doctors relied upon is going to show. And all of this while he is on probation for the sexually violent offense from 1975.”

¶ 12 Gavin did not object, and the State continued:

“But his sexual offending didn't stop there, and the behaviors that the doctors are relying upon did not stop there. He continues to offend and in 1988, when he is now approximately 29 years old, I believe, he commits another sexually violent offense, and that's aggravated criminal sexual assault.

In that case he attacks a 48–year–old woman, a maid from a hotel. He does so in the hotel room. And he is armed with some type of block of wood. He forces sexual intercourse upon her, and the doctors will tell you that * * * the reports that they read said that he also riffled through her purse and demanded money from her.

So this sexual behavior, this pattern of sexual behavior that the doctors observed is what lends itself to their diagnoses, is what you're going to hear, of the paraphilia not otherwise specified, and also the antisocial personality disorder. And those are only some of the behaviors that they're going to tell you about during the trial.”

¶ 13 During its case-in-chief, the State called two expert witnesses: Dr. Vasiliki Tsoflias, a forensic psychologist, and Dr. Kimberly Weitl, a psychologist, to testify as experts in clinical and forensic psychology, and in the evaluation, treatment, and risk analysis of sex offenders. Both experts examined Gavin's records from the DOC and DHS, police reports, court documents, attorney statements,...