People v. Moore (In re Moore)

2023 IL App (5th) 170453

221 N.E.3d 1113

468 Ill.Dec. 891

IN RE COMMITMENT OF Allen MOORE

(The People of the State of Illinois, Petitioner-Appellee,

v.Allen Moore, Respondent-Appellant).

NO. 5-17-0453

Appellate Court of Illinois, Fifth District.

Filed April 10, 2023

Brian D. Flynn, of Flynn Guymon & Garavalia, of Belleville, for appellant.

Kwame Raoul, Attorney General, of Chicago (Jane Elinor Notz, Solicitor General, Michael M. Glick and Evan B. Elsner, Assistant Attorneys General, of counsel), for the People.

OPINION

PRESIDING JUSTICE BOIE delivered the judgment of the court, with opinion.

¶ 1 After a trial, the respondent, Allen Moore, was found by a jury to be a sexually violent person pursuant to the Sexually Violent Persons Commitment Act (Act) ( 725 ILCS 207/1 et seq. (West 2004)) and was ordered to be committed to institutional care in a secure facility. The respondent appeals, presenting five issues for review. The respondent claims that (1) the trial court committed plain error by failing to conduct a proper polling of the jury, (2) the respondent's trial counsel was ineffective, (3) the trial court erred in denying the respondent's motion in limine , (4) the trial court erred in granting the State's motion to vacate without the respondent's presence and without a hearing being recorded by a court reporter, and (5) the State was judicially estopped from arguing that the respondent's prior nonsexual past crimes were evidence of a pattern of behavior to constitute a diagnosis under the Act. For the following reasons, we affirm the judgment of the circuit court of St. Clair County.

¶ 2 I. BACKGROUND

¶ 3 The respondent pleaded guilty in January 1994 to one count of attempted aggravated criminal sexual assault and attempted armed robbery in St. Clair County, Illinois. On July 8, 2005, the State filed a petition to commit the respondent under section 15 of the Act (id. § 15). On July 8, 2005, the trial court made a finding that there was probable cause to believe that the respondent was a sexually violent person (SVP), pursuant to section 35(f) of the Act (id. § 35(f)), and ordered the respondent to be detained pending his trial. The trial court appointed Dr. Kirk Witherspoon as an expert for the respondent, pursuant to section 25(e) of the Act (id. § 25(e)). The Illinois Department of Human Services (DHS) assigned Dr. Ray Quackenbush to evaluate the respondent on behalf of the State, which he did in August 2005. Additionally, Dr. Michael H. Fogel evaluated the respondent in July 2005, pursuant to an Illinois Department of Corrections (IDOC) screening procedure for convicted sex offenders who are scheduled for mandatory supervised release or discharge.

¶ 4 In February 2006, the parties advised the trial court that the respondent had been returned to IDOC for a parole violation. The trial court dismissed the SVP petition without prejudice on April 4, 2006, on the State's motion. On April 17, 2006, the State filed a written motion to vacate the dismissal order and reinstate the respondent's SVP proceeding, explaining that IDOC had miscalculated the respondent's anticipated release date and, based on the corrected calculation, the SVP petition should proceed. The trial court granted the motion that same day. Dr. Quackenbush evaluated the respondent again in May 2006, and Dr. Witherspoon evaluated the respondent in July 2006. Between 2006 and 2010, the case was delayed by continuances, discovery, and motion practice; the details of which are not necessary to the disposition of this appeal.

¶ 5 On February 8, 2010, the trial court ordered Dr. Fogel, Dr. Quackenbush, and Dr. Witherspoon to complete updated evaluations. On May 3, 2010, the State filed a motion to conduct a current SVP evaluation, indicating that Dr. Quackenbush had retired, would be relocating away from the area, and would be unavailable to testify in a trial of this matter. The State requested that a new expert be permitted to evaluate the respondent, and the trial court appointed Dr. Kimberly Weitl. Dr. Weitl evaluated the respondent for the State in June 2010 and again in October 2012. On October 13, 2013, the trial court, on motion of the State, entered an order appointing an additional expert to conduct an evaluation of the respondent. Dr. Melissa Weldon-Padera evaluated the respondent in December 2014. On April 3, 2014, on the State's motion, the trial court appointed Dr. Angeline Stanislaus to evaluate the respondent. Dr. Stanislaus completed her evaluation in July 2014. The trial court entered an additional order appointing Dr. Diane Lytton to evaluate the respondent as the respondent's expert witness. On October 24, 2014, the trial court entered an order requiring Dr. Lytton's report to be disclosed no later than October 29, 2014. Further, the trial court ordered that Dr. Lytton be made available to be deposed by the State no later than October 31, 2014. It is unclear from the record whether Dr. Lytton ever evaluated the respondent or was deposed, but she did not testify in the jury trial in this matter.

¶ 6 A jury trial was held on November 3, 2014. On the same date, the trial court addressed the respondent's motion in limine to exclude from trial any testimony regarding conduct that had not resulted in his conviction for a sex offense. The trial court denied the respondent's motion but granted the respondent's request for a limiting instruction admonishing the jury that such testimony was being admitted for the limited purpose of explaining the bases for the experts’ opinions and for determining what weight should be afforded to their opinions. The trial court provided the jury with these admonishments before each expert testified.

¶ 7 At trial, the parties stipulated to the respondent's conviction for attempted aggravated criminal sexual assault, a sexually violent offense as defined by the Act. The State then presented two witnesses qualified as experts in sex offender evaluation, diagnosis, and risk assessment. Dr. Angeline Stanislaus and Dr. Kimberly Weitl each testified on behalf of the State, and each opined that the respondent met the legal standard for an SVP and was dangerous. The experts first determined that the respondent suffered from two mental disorders called "other specified paraphilic disorder" and "other specified personality disorder with antisocial personality traits." Next, the experts, after conducting a risk assessment, opined that it was substantially probable that the respondent would commit further acts of sexual violence.

¶ 8 In reaching their opinions, both experts relied upon information contained in the respondent's IDOC master file, the respondent's medical and disciplinary records during his time at IDOC, and DHS. Additionally, the experts relied upon prior evaluations by other sex offender evaluators. Dr. Stanislaus conducted a clinical interview with the respondent in June 2014 with her evaluation being completed in July 2015. Dr. Weitl relied upon information that the respondent provided in interviews with prior evaluators, as the respondent refused to participate in an interview with her.

¶ 9 Dr. Stanislaus testified about how she formed her opinion as to the respondent's mental health diagnoses and risk of reoffending. Dr. Stanislaus stated that she had relied upon the respondent's pattern of behavior based, in part, on his prior criminal history consisting of a 1993 predicate sexually violent offense (predicate offense), an attempted armed robbery, a 1995 aggravated battery and aggravated unlawful restraint, and a 2001 residential burglary. Dr. Stanislaus testified that it was her opinion, based on the facts surrounding each incident, that all of the respondent's history outlined above was sexually motivated. Dr. Stanislaus also considered the respondent's disciplinary history while in the custody of IDOC and DHS, including sexual misconduct citations for groping one female corrections officer and openly masturbating while in the presence of another.

¶ 10 Dr. Stanislaus discussed each incident she relied upon in diagnosing the respondent. Regarding the predicate offense in 1993, Dr. Stanislaus considered the fact that the respondent followed a woman around her apartment complex parking lot at 10 p.m., grabbed her from behind, covered her mouth with one hand, held a knife to her side with the other hand, and threatened to stab her if she screamed. The respondent "led her into an open garage" and demanded money, took her into a side room, and, while holding a knife to her neck, forced her to remove her pants and panties. The respondent had the victim pull down his pants, revealing his erect penis, and he attempted to penetrate her vaginally. The victim resisted. As they struggled over the knife, she told the respondent that she could not breathe and was having an asthmatic attack. At that point, the respondent stopped, laid down next to the victim, and caressed her buttocks before leaving. Dr. Stanislaus testified that the respondent provided a consistent description of the offense in his clinical interview.

¶ 11 Regarding the respondent's conviction for attempted armed robbery, Dr. Stanislaus summarized that the respondent committed the offense on the evening following the predicate offense. Dr. Stanislaus described the incident, stating that at around 10 p.m., a woman had come out of an apartment to get into a car in the parking lot. As she was getting into that car, the respondent attempted to enter her vehicle. The respondent was pointing a gun at her through the window when she started honking the car horn and managed to pull the car door shut. At that point, the respondent ran away. Although there was no overtly sexual act committed by the respondent in the attempted armed robbery, Dr. Stanislaus found the pattern of behavior to be significant, in that the victim was a woman alone in a parking lot and the respondent had tried unsuccessfully to get into her car.

¶ 12 Dr. Stanislaus also considered the...