NOTICE

Decision filed 05/30/14. The text of this decision may be NO. 5-11-0495 changed or corrected prior to the filing of a Petition for Rehearing or the disposition of IN THE the same.

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________

In re JAMES W. ) Appeal from the ) Circuit Court of (The People of The State of Illinois, ) Randolph County. ) Petitioner-Appellee, ) ) v. ) No. 11-MH-126 ) James W., ) Honorable ) Richard A. Brown, Respondent-Appellant). ) Judge, presiding. ________________________________________________________________________

JUSTICE STEWART delivered the judgment of the court, with opinion. Justices Goldenhersh and Spomer concurred in the judgment and opinion.

OPINION

¶1 The respondent, James W., appeals from the trial court's October 13, 2011, order

concluding that he should remain subject to involuntary admission and be "hospitalized in

a Department of Human Services mental health or developmental center, which is the least

restrictive environment currently appropriate and available." We affirm.

¶2 BACKGROUND

¶3 On September 15, 2011, a petition was filed in the circuit court of Randolph County

seeking to continue the involuntary admission of the respondent in a Department of Human

1 Services mental health center pursuant to section 3-813 of the Mental Health and

Developmental Disabilities Code (the Code) (405 ILCS 5/3-813 (West 2010)). Ellen

Steibel, a Chester Mental Health Center employee, alleged that the respondent was "a

person with mental illness, who because of his or her illness is reasonably expected, unless

treated on an inpatient basis, to engage in conduct placing such person or another in

physical harm or in reasonable expectation of being physically harmed" and is "a person

with mental illness, who because of his or her illness is unable to provide for his or her

basic physical need so as to guard himself or herself from serious harm without the

assistance of family or others, unless treated on an inpatient basis." The respondent was

admitted, on an involuntary basis, to the Chester Mental Health Center on December 13,

2003, from the Dixon Correctional Center. Ms. Steibel alleged that the respondent

believed he did not have a mental illness, was not always medication-compliant, exhibited

aggression towards staff and peers, and was paranoid with fixed delusions and poor insight

and judgment.

¶4 Inpatient certificates by Chester Mental Health Center staff psychiatrist Dr. T.

Casey and licensed social worker Tracy Mott were filed with the petition. Both opined

that the respondent was in immediate need of hospitalization because he was "a person

with mental illness who, because of his or her illness is unable to provide for his or her

basic physical need so as to guard himself or herself from serious harm, without the

assistance of family or others, unless treated on an inpatient basis."

¶5 Dr. Casey outlined the respondent's history. At the time of the report, the

respondent was a 57-year-old single black man who had never married. He had an 2 eighth-grade education. Since 1986 he had multiple Department of Human Services

admissions. He had been convicted and incarcerated in the Department of Corrections for

robbery, attempted murder, aggravated battery, aggravated sexual assault, possession of an

illicit substance, and parole violation. He was readmitted to the Chester Mental Health

Center in December 2003 as an involuntary admission from the Dixon Correction Center

after reaching his mandatory parole date. The respondent had been diagnosed with

chronic paranoid schizophrenia and had been treated with various antipsychotic

medications.

¶6 Dr. Casey wrote that he examined the respondent on September 7, 2011. Dr. Casey

reported that the respondent was psychotic, paranoid, and periodically aggressive, engaged

in sexually inappropriate behavior, and possessed poor insight and judgment. He noted

that the respondent was preoccupied and delusional about having syphilis. He

complained about painful urination and blood in his urine, and he demanded penicillin

shots despite negative tests. Dr. Casey wrote that the respondent did not believe he has a

mental illness and had problems with medication compliance, resulting in an increase in

positive symptoms of psychosis. Dr. Casey noted that while the respondent's last restraint

was in January 2011, he continued to be verbally abusive and periodically physically

aggressive. Dr. Casey opined that the respondent continued to need the structure and

supervision provided in a secure setting because without it he was unlikely to comply with

his medications and treatment, causing him to further decompensate and inflict physical

harm upon others.

¶7 Ms. Mott examined the respondent on September 6, 2011. In her inpatient 3 certificate, she noted that the respondent's psychiatric history dated back to age 13. She

wrote that he suffered from both paranoid and grandiose delusions. He believed that he

was "Jesus Christ Superstar" and other important religious figures. He also had a fixed

delusional belief that he had a constant urinary tract infection and needed daily doses of

antibiotics, despite repeated negative laboratory tests. Ms. Mott reported that since May

2011, the respondent had refused to take his medication on 19 occasions and, on May 31,

2011, told his therapist that he will not take his psychiatric medications when he is

released. She noted that he consistently presented with antisocial behaviors such as

stealing from his peers, harassing his peers, and having no regard for the welfare of others.

Ms. Mott opined that the respondent was in need of involuntary hospitalization because he

lacked insight into his mental illness, he demonstrated an impaired capacity for reality

testing, and he was unable to understand his need for treatment. She believed that because

of the length of time that the respondent had been hospitalized and incarcerated, he would

be unable to provide for his basic needs without extensive support in the community.

¶8 A treatment plan that was formulated on August 16, 2011, was attached to the

petition. It was signed by Dr. Casey and Wayne Womac, the respondent's coordinating

psychologist. Three problems were identified: psychiatric symptoms, verbal and physical

aggression, and inappropriate sexual behavior. The respondent was diagnosed with

chronic paranoid-type schizophrenia and an antisocial disorder. In the treatment plan it

was noted that the respondent continued to be delusional. In particular, the respondent

believed he had an undetected infection, that he was a central figure in the Old Testament,

that he had "visions of light in the sky" that communicate with him, and that he was being 4 singled out for persecution. His delusions and paranoid ideations caused him to become

violent or to defend himself with aggression and/or illegal behaviors. It was noted that

while the respondent had not been as aggressive as in the past, he continued to harass his

peers. According to his treatment team, the respondent was not compliant with

medications and therapeutic interventions.

¶9 The respondent filed a motion for an independent evaluation. On September 26,

2011, the trial court granted his motion and appointed Dr. Nageswara Vallabhaneni to

conduct the independent evaluation.

¶ 10 On October 12, 2011, a jury trial was held. The inpatient certificates and the

treatment plan were not admitted into evidence. Dr. Vallabhaneni testified that he is a

psychiatrist who works at Chester Mental Health Center as an independent contractor. He

stated that he had been a board-certified psychiatrist for 31 years. He met with the

respondent on September 29, 2011, and October 4, 2011. The respondent did not

cooperate with the full evaluation and their contacts were very brief. Dr. Vallabhaneni

explained the purpose of the evaluation to the respondent. Each time the respondent said,

"Oh, I want to go home. I want discharged" and walked away.

¶ 11 Dr. Vallabhaneni testified that he had performed evaluations on the respondent on

May 18, 2010, February 8, 2011, and March 31, 2011. In forming his opinion Dr.

Vallabhaneni testified that he based it on a review of the respondent's clinical file, his own

observations of the respondent, his past contact with the respondent, the treatment plan, Dr.

Casey's records, and the most recent psychiatric evaluation done at Chester Mental Health

Center. Dr. Vallabhaneni diagnosed the respondent with paranoid-type schizophrenia and 5 antisocial personality disorder. He stated that the respondent is delusional and believes he

suffers from syphilis despite medical evidence to the contrary. The respondent persists in

the belief, claims to have symptoms, and is so disturbed by the delusion that he cannot stop

asking for treatment for the ailment.

¶ 12 Dr. Vallabhaneni testified that he believed that the respondent is a person who,

because of his mental illness, can act out in a dangerous manner hurting himself or others.

He stated that the respondent has a long history of assaulting other patients as evidenced by

his behavior, aggression, and placement in restraints. Dr. Vallabhaneni stated that in the

respondent's last treatment plan it was reported that the respondent was involved in an

aggressive act with another patient on September 4, 2011. The respondent had been

harassing the peer, and when the peer became aggressive, the respondent fought with him.

¶ 13 Dr. Vallabhaneni opined that because the respondent is schizophrenic he is not

likely to take his medication if released from Chester Mental Health Center. He stated

that often schizophrenics do not take their medications because they believe that there is

nothing wrong with them and fear that medicine will harm them. Dr. Vallabhaneni

testified that if the respondent failed to take his medication he would have an immediate

acute relapse. His symptoms would return very quickly, he would become psychotic, and

he would be unlikely to take care of his own basic physical needs. Patients with serious

mental illness who go off medication believe they do not need to bathe, eat properly, or

sleep properly. Dr. Vallabhaneni anticipated that if released from Chester Mental Health

Center, the respondent would neglect his basic needs in every way, possibly to the point

where someone would realize he had a problem and take him back to a mental health 6 facility. Dr. Vallabhaneni testified that the respondent's failure to take his medication

would cause the respondent's symptoms to return, his condition would be worse, and the

mental deterioration would cause him to be more likely to engage in dangerous conduct.

¶ 14 Dr. Vallabhaneni opined that the respondent had not reached the mental/behavior

stability required to be transferred or discharged. Dr. Vallabhaneni felt that, due to the

respondent's serious mental disorder, the current placement in Chester Mental Health

Center was clinically justifiable and that he was an appropriate candidate for involuntary

commitment to a mental health facility within the Department of Human Services.

¶ 15 The respondent testified on his own behalf. When asked why he felt he should be

released from the Department of Human Services he replied: "Because I served my time.

I got a better life than being incarcerated." He testified that if released he planned to go to

Chicago where he felt he would be able to find employment in the construction field. He

planned to live in a group home until he could find his own apartment. He stated that his

family lives in Detroit, California, and Iowa, but he would not consider living with any of

them. The respondent testified that if released he would take his medication as prescribed.

When asked if he believed that he suffered from a mental illness he replied, "Slightly." He

testified that he would not be a danger to himself or others.

¶ 16 The following instruction was given to the jury:

"A person is subject to involuntary admission when he is

A person with mental illness and who because of his illness is reasonably

expected to engage in dangerous conduct which may include threatening behavior

or conduct that places that person or another individual in reasonable expectation of 7 being harmed;

A person with mental illness and who because of his illness is unable to

provide for his basic physical needs so as to guard himself from serious harm

without assistance of family or outside help; or

A person with mental illness who, because of the nature of his illness, is

unable to understand his need for treatment and who, if not treated, is reasonably

expected to suffer or continue to suffer mental deterioration or emotional

deterioration, or both, to the point that the person is reasonably expected to engage

in dangerous conduct.

If you find from your consideration of all the evidence that any one of these

propositions has been proven by clear and convincing evidence, you should find the

respondent subject to involuntary admission.

If you find from your consideration of all the evidence that none of these

propositions has been proven by clear and convincing evidence, you should find the

respondent not subject to involuntary admission."

¶ 17 The jury found that the respondent was subject to involuntary admission. The

verdict form was a general verdict form that stated simply, "We the jury, find the

Respondent, James W***, subject to involuntary admission." On October 13, 2011, the

trial court ordered the respondent to be hospitalized in a Department of Human Services

mental health or development center, which is the least restrictive environment currently

appropriate or available. The respondent filed a timely notice of appeal.

8 ¶ 18 ANALYSIS

¶ 19 At the trial, the jury was instructed regarding three alternative criteria necessary to

find the respondent subject to involuntary commitment. Two of these criteria were based

on outdated statutory language from section 1-119 of the Code (405 ILCS 5/1-119 (West

2008)). The first and third criteria involved "dangerous conduct," a statutory standard

found unconstitutional in In re Torski C.,

,

(2009). Subsequent to In re Torski C., the legislature amended section 1-119

(Pub. Act 96-1399, § 5 (eff. July 29, 2010) (amending 405 ILCS 5/1-119 (West 2008))) to

remove any references to "dangerous conduct" and changed the commitment criteria under

section 1-119. The second criteria presented to the jury is still valid under the amended

statute, which provides that a person is subject to involuntary admission on an inpatient

basis if he or she is "[a] person with mental illness who because of his or her illness is

unable to provide for his or her basic physical needs so as to guard himself or herself from

serious harm without the assistance of family or others, unless treated on an inpatient

basis." 405 ILCS 5/1-119(2) (West 2010). The respondent argues that because the trial

court instructed the jury on unconstitutional and outdated criteria for involuntary

commitment, he was denied his right to a fair trial.

¶ 20 The respondent brings this appeal from an involuntary admission order that was to

remain in effect for 180 days from the date of the order. Because that time has expired, the

order is no longer in effect and no actual relief can be granted. Before we can address the

merits of the respondent's appeal, we must first determine whether any exception to the

mootness doctrine applies. Whether an appeal is moot presents a question of law and is 9 reviewed de novo. In re Karen E.,

,

(2011).

There are three exceptions to the mootness doctrine in cases of involuntary admission: (1)

the collateral-consequences exception, (2) the public-interest exception, and (3) the

capable-of-repetition-yet-avoiding-review exception. In re Charles K.,

,

(2010). Whether a case falls within one of the exceptions

must be examined on a case-by-case basis.

¶ 21 The issue in the instant case involves whether giving the jury instructions based on a

statute that has been ruled unconstitutional and has been amended to remove the

unconstitutional language deprives the respondent of a fair trial. The public-interest

exception to the mootness doctrine applies. "The public interest exception allows a court

to consider an otherwise moot case when (1) the question presented is of a public nature;

(2) there is a need for an authoritative determination for the future guidance of public

officers; and (3) there is a likelihood of future recurrence of the question." In re Alfred

H.H.,

,

(2009). The procedures and statutory

guidelines that must be followed to order the involuntary commitment of an individual to a

mental health facility are matters of considerable public concern. In re Lance H.,

,

(2010). Thus, the issue in this case is of a

public nature.

¶ 22 Next we must examine whether there is a need for an authoritative determination

and if there is a likelihood of future recurrence of the question. The State tendered the jury

instructions, and defense counsel stated he had no objection to the instructions. The trial

court accepted the instructions without question. In entering the order for the involuntary 10 treatment of the respondent, the trial court used a preprinted form. The form had a box to

check if the person was subject to involuntary admission and three boxes to check for the

criteria for finding the respondent subject to involuntary commitment. The trial court did

not check any of the criteria. The three criteria on the preprinted form included two

containing the language "dangerous conduct." This language was found to be

unconstitutional in In re Torski C.,

,

. In

2010 the legislature amended the statute to eliminate the "dangerous conduct" language.

This became effective July 29, 2010. The order in this case was entered on October 13,

2011, two years after the decision in In re Torski C., and more than one year after the

legislature amended the statute. We believe there is a need for an authoritative

determination for future guidance, and we feel there is a likelihood of future recurrence of

the issue. Thus, we find that the issues in this case related to the use of a jury instruction

containing unconstitutional language satisfy the public-interest exception to the mootness

doctrine, and we will consider the respondent's argument.

¶ 23 In the instant case, the respondent did not raise an issue in the trial court concerning

the propriety of the jury instructions. A respondent forfeits review of a jury-instruction

error if he did not object to the instruction or offer an alternative instruction. In re Charles

K.,

,

. At issue is whether the respondent received

a fair trial. The imposition of involuntary mental health services implicates an

individual's substantial liberty interests. In re Charles H.,

,

(2011). Forfeiture is a limitation on the parties, but not the court.

,

. A finding that respondent has forfeited his constitutional 11 argument could result in this court affirming his involuntary commitment even though the

commitment might have been based on an unconstitutional statutory standard. Because a

substantial liberty interest is involved and forfeiture is not a limitation on the court, we

choose to address the issue raised in this appeal.

¶ 24 The respondent argues that because the trial court instructed the jury on

unconstitutional and outdated criteria for involuntary commitment, he was denied his right

to a fair trial. The respondent raises no issue with the jury instruction concerning his

ability to provide for his basic needs.

¶ 25 "Instructions convey the legal rules applicable to the evidence presented at trial and

thus guide the jury's deliberations toward a proper verdict." People v. Mohr,

,

(2008). Jury instructions which are not supported by the

law should not be given.

,

. The reviewing court must

determine whether the instructions, considered together, fully and fairly announce the law

applicable to the theories of both parties.

"Although the giving of jury instructions is

generally reviewed for an abuse of discretion, when the question is whether the jury

instructions accurately conveyed to the jury the law applicable to the case, our review is de

novo." People v. Pierce,

,

(2007).

¶ 26 In In re Charles K., a jury found the respondent to be a person subject to involuntary

admission. In re Charles K.,

,

. On appeal, the

respondent argued that the order of commitment should be reversed because the jury was

not instructed that the State was required to prove by clear and convincing evidence that he

was mentally ill.

,

. The respondent admitted he did not 12 object to the instruction at trial or offer an alternative instruction. Id. at 1063,

. The court found that the issue presented was of sufficient importance to justify its

review despite the respondent's forfeiture of the issue.

The respondent urged the

court to review the issue under a doctrine analogous to the plain-error doctrine.

The

court noted that while the plain-error doctrine applies to criminal and not civil cases, a

similar analysis should be applied.

The court found that in reviewing the matter it

must first determine whether any error occurred, and if so, whether the respondent suffered

prejudice from the error.

,

.

¶ 27 The court found that the instructions given to the jury did not explicitly convey that

the State had the burden of proving by clear and convincing evidence that the respondent

suffered from a mental illness.

,

. It held that because the

instructions did not make clear a necessary element of the State's burden of proof, it was

error not to include an instruction explicitly conveying each and every factor that the State

was required to prove in order to support a finding that the respondent was a person subject

to involuntary admission. Id. at 1066,

. The court then examined

whether the respondent was prejudiced by the error. It held that a jury instruction is

harmless if it is demonstrated that the result of the trial would not have been different had

the jury been properly instructed.

The court found that, given the weight of the

evidence presented at trial that respondent suffered from a mental illness, the fact that the

jury was not specifically instructed about the State's burden of proof was harmless error.

,

. It found that the result of the trial would not have been any

different had the jury been properly instructed.

13 ¶ 28 In the instant case, the trial court erred in giving instructions based on statutory

provisions that had been found unconstitutional and had been amended to remove any

reference to "dangerous conduct." We must examine whether the respondent was

prejudiced by the error. Section 6-100 of the Code provides that "[j]udicial proceedings

conducted pursuant to this Act shall be conducted in accordance with the Civil Practice

Law, except to the extent the provisions of this Act indicate to the contrary or are

inconsistent, in which case this Act governs." 405 ILCS 5/6-100 (West 2010). Section

2-1201 of the Code of Civil Procedure provides, in pertinent part, that "[i]f several grounds

of recovery are pleaded in support of the same claim, whether in the same or different

counts, an entire verdict rendered for that claim shall not be set aside or reversed for the

reason that any ground is defective, if one or more of the grounds is sufficient to sustain the

verdict." 735 ILCS 5/2-1201(d) (West 2010).

¶ 29 In the instant case, Ms. Steibel filed a petition for involuntary admission on the

grounds that the respondent was a person with a mental illness who because of his illness

was reasonably expected, unless treated on an inpatient basis, to engage in conduct placing

him or another in physical harm or in a reasonable expectation of being physically harmed

and is unable to provide for his basic physical needs so as to guard himself from serious

harm without the assistance of family or others, unless treated on an inpatient basis. The

grounds for involuntary admission pled in the petition were in accordance with section

1-119 of the Code (405 ILCS 5/1-119 (West 2010)). The jury instructions included three

grounds for the involuntary admission of the respondent. Two of those grounds were

based on parts of section 1-119 that were declared unconstitutional and violative of the 14 substantive guarantees of due process. The jury returned a general verdict that the

respondent was subject to involuntary admission. While two of the grounds presented in

the jury instructions were based on a statute ruled unconstitutional, the second ground

presented in the jury instruction was a valid ground. Because the jury returned a general

verdict and one of the theories presented was a valid ground for involuntary admission, the

verdict will be upheld if there was sufficient evidence to sustain the theory.

¶ 30 The respondent argues that the State failed to prove by clear and convincing

evidence that he met the one valid criteria presented to the jury for involuntary

commitment. At a commitment hearing, the State's burden is to prove by clear and

convincing evidence that the respondent is a person subject to involuntary admission. In

re Nau,

,

(1992). "The clear and convincing

standard requires proof greater than a preponderance, but not quite approaching the

criminal standard of beyond a reasonable doubt." In re D.T.,

,

(2004). A reviewing court may not disturb a jury's decision unless it is

against the manifest weight of the evidence. Burgess v. Abex Corp.,

,

(2000). A jury's decision is given respect and deference, and a

reviewing court will not invade the function of the jury and substitute its judgment for the

jury's. Hawkes v. Casino Queen, Inc.,

,

(2003). A judgment is against the manifest weight of the evidence only when an opposite

conclusion is clearly apparent or where the jury findings are unreasonable, arbitrary, or not

based on evidence.

,

.

¶ 31 In the instant case, the jury was instructed that if it found, from consideration of all 15 the evidence, that the State proved by clear and convincing evidence that the respondent

was a person with mental illness who because of his illness was unable to provide for his

basic physical needs so as to guard himself from serious harm without assistance of family

or outside help, it should find the respondent subject to involuntary admission. This

instruction accurately reflected the law. Section 1-119 provides, in pertinent part, that a

person is subject to involuntary commitment if the State shows he or she is:

"(2) A person with mental illness who because of his or her illness is unable

to provide for his or her basic physical needs so as to guard himself or herself from

serious harm without the assistance of family or others, unless treated on an

inpatient basis[.]" 405 ILCS 5/1-119(2) (West 2010).

¶ 32 The respondent argues that there was no evidence of any recent observation of him

to support Dr. Vallabhaneni's opinion that he was unable to take care of his basic needs.

The respondent asserts that Dr. Vallabhaneni was not his treating physician or a member of

his treatment team, and had only two brief contacts with him. The respondent argues that

based on the doctor's lack of direct, current interaction with him and the lack of direct

evidence regarding his ability to meet his basic needs, the evidence was not sufficient for

the jury to find him subject to involuntary commitment.

¶ 33 Section 3-807 of the Code provides, in pertinent part, that "[n]o respondent may be

found subject to involuntary admission on an inpatient or outpatient basis unless at least

one psychiatrist, clinical social worker, clinical psychologist, or qualified examiner who

has examined the respondent testifies in person at the hearing." 405 ILCS 5/3-807 (West

2012). This court has held that section 3-807 "requires the examiner to attempt a personal 16 interview but that if the respondent refuses or is intentionally uncooperative, then the

statutory examination may be based on discussions with treating staff and a review of

medical records." In re David B.,

,

(2006).

¶ 34 The respondent requested an independent medical evaluation, and the court granted

his motion. Dr. Vallabhaneni was appointed to evaluate the respondent. Dr.

Vallabhaneni had not treated the respondent since 2004, but was familiar with him. He

attempted to interview the respondent on September 29, 2011, and October 4, 2011. The

respondent refused to cooperate, stated that he wanted to be discharged, and then walked

away. Because the respondent was intentionally uncooperative with the physician

performing the independent medical evaluation that he requested, Dr. Vallabhaneni could

base his examination on a review of the medical records and discussions with treating staff.

¶ 35 Dr. Vallabhaneni testified that in addition to his meeting with the respondent on

September 29, 2011, and October 4, 2011, he had performed evaluations of the respondent

on May 18, 2010, February 8, 2011, and March 31, 2011. He stated that he formed his

medical diagnosis of the respondent based on his extensive history, his clinical record, and

his brief meetings with the respondent. Dr. Vallabhaneni particularly relied on the

information from Dr. Casey, the respondent's treating psychiatrist, plus his treatment plan

review conducted on September 13, 2011. Because the respondent was uncooperative

with Dr. Vallabhaneni, and Dr. Vallabhaneni based his testimony on his meetings with the

respondent and a review of the respondent's medical records, his testimony met the

requirements of section 3-807 of the Code. 17 ¶ 36 The respondent argues that the State failed to show by clear and convincing

evidence that he was unable to care for himself if released. "Generally, the inability to

care for oneself so as to guard against physical harm is found where one's illness

substantially impairs [his] thought processes, perceptions, emotional stability, behavior, or

ability to cope with life's ordinary demands." In re Tuman,

,

(1994). "In making such a determination, a court should consider whether a

person (1) can obtain [his] own food, shelter, or necessary medical care; (2) has a place to

live or a family to assist him; (3) is able to function in society; and (4) has an understanding

of money or a concern for it as a means of sustenance."

¶ 37 Dr. Vallabhaneni testified that the respondent suffered from schizophrenia,

paranoid type, and from antisocial personality disorder. He testified that the respondent's

schizophrenia caused him to have thought disturbances and that he often believed people

were against him. Dr. Vallabhaneni testified that the respondent was delusional and had a

strong belief that he suffered from syphilis. The respondent believed he had symptoms

and demanded treatment with penicillin. Despite evidence to the contrary, the respondent

could not be convinced he did not have syphilis. Dr. Vallabhaneni testified that the

respondent's delusion was so strong that he could not stop asking for treatment for the

condition.

¶ 38 Dr. Vallabhaneni testified that the respondent had no insight into his mental illness.

When asked if he believed he was suffering from a mental illness, the respondent replied,

"Slightly." When asked on direct examination why he felt he should be released from the

Department of Human Services, the respondent replied: "Because I served my time. I got 18 a better life than being incarcerated. You know, I had skills. I do construction work. I

have–I have been working since I was 13." From this response, the jury could find that the

respondent did not understand that he was in Chester Mental Health Center for treatment of

mental illness and that this bolstered Dr. Vallabhaneni's testimony that the respondent had

little insight into his mental illness.

¶ 39 Dr. Vallabhaneni testified that he and the respondent's treating physician and

treating psychologist all felt that the respondent was mentally ill and met the criteria for

involuntary commitment. Dr. Vallabhaneni stated that the respondent was delusional and

aggressive. Dr. Vallabhaneni testified that based on the respondent's lack of insight into

his mental illness, his history of noncompliance in taking medication, and his diagnosis,

there was a very good possibility that he would not take his medication if released from

Chester Mental Health Center. He stated that if the respondent failed to take his

medication it would result in an immediate acute relapse. The respondent's symptoms

would return and his condition would be worse. Dr. Vallabhaneni stated that if the

respondent relapsed, he would be unlikely to take care of his own basic physical needs.

¶ 40 "The jury as trier of fact is in a superior position to a reviewing court to determine

the witness' credibility and weigh the evidence." Ryan v. Mobil Oil Corp.,

,

(1987). The respondent responded to questions in

an odd and inappropriate manner. The respondent testified that he had resided at Chester

Mental Health Center for eight years. He stated that a facility up north transferred him to

Chester Mental Health Center because: "The facility up north, they evaluated me. They

said I don't have a place to stay, you know, and so they put me in a hospital, but I came with 19 $10,000 in my pocket." When the respondent was asked if he had been committed to a

different institution he replied:

"No, just the county. I was–I would be arrested for things that wasn't true, you

know. First of all, in 1975, I was arrested for armed robbery, and in front of Judge

James M. Bailey, he denied me a fair trial, and I got found guilty and he give me six

to 20. I did the six years, I get out, police drive up on me, and they put me in the

car. They accused me of being such and such and so I committed murder out of

Michigan or I'm on parole. And each time they picked me up I'm doing six years,

eight years, four years, three years, over 37 years–"

The respondent was asked if he had ever been transferred from Chester before and he

responded:

"I was going–coming back and forth to Chester from being picked up in Chicago by

officers, and they would give me an evaluation, and I would come back and forth

from Chester to the county so many times. And like Vallabhaneni said, you know,

we go back a ways, all the way to '78 sometime when I first met him."

From these responses the jury could determine that the respondent had been in the mental

health system for a number of years.

¶ 41 The respondent testified that although his family lives in Detroit, California, and

Iowa he would not consider living with a family member and instead planned to move to

Chicago if released. He stated that he had construction skills and planned to work in that

field in Chicago. He also stated that he planned to live in a group home until he could find

his own apartment. He did not offer any detail about his potential employment or 20 housing. He did not indicate that he had researched any of these choices. Based on the

respondent's demeanor, his numerous years in the mental health system, his lack of insight

into his mental illness as evidenced by his and Dr. Vallabhaneni's testimony, Dr.

Vallabhaneni's diagnosis of the respondent, and Dr. Vallabhaneni's opinion that the

respondent would not take his medication if released, it was not against the manifest weight

of the evidence for the jury to determine that the respondent was mentally ill and because

of his mental illness he was unable to provide for his basic physical needs. Because there

was sufficient evidence to sustain the jury's verdict based on the second ground presented

to it, we cannot say that the result of the trial would have been different had the jury been

properly instructed. Thus, the improper jury instructions given at the respondent's

involuntary admission trial constituted harmless error.

¶ 42 Finally, the respondent argues that he was denied effective assistance of counsel.

He argues that his counsel failed to object at trial that the jury instructions misstated the law

and he failed to contradict the lack of evidence on his ability to take care of his basic needs.

Section 3-805 provides that "[e]very respondent alleged to be subject to involuntary

admission on an inpatient or outpatient basis shall be represented by counsel." 405 ILCS

5/3-805 (West 2010). "[T]he State's statutorily providing a respondent in an involuntary

commitment proceeding with the right to counsel implicitly includes the right to the

effective assistance of that counsel." In re Carmody,

,

(1995). The Strickland standard (Strickland v. Washington,

(1984)) has been adopted in mental health cases involving involuntary commitment

proceedings. In re Mark P.,

,

(2010). 21 "Under Strickland, the respondent must establish that (1) counsel's performance was

deficient, such that the errors were so serious that counsel was not functioning as the

'counsel' contemplated by the Code; and (2) counsel's errors were so prejudicial as to

deprive her of a fair proceeding." In re Carmody,

,

. To show prejudice, the respondent must show that there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have been

different. Strickland,

.

¶ 43 As discussed, counsel's failure to object at trial to the jury instruction that misstated

the law did not prejudice the respondent. We have established that counsel's failure to

object to the misstatement of the law did not affect the outcome of the case because there

was still one valid ground for the jury to find the respondent subject to involuntary

commitment. Therefore, he suffered no prejudice because of the misstatement and has

failed to establish the second prong of the Strickland test with respect to the jury

instruction.

¶ 44 The respondent alleges that his counsel ignored the State's failure to provide any

direct evidence on how his behavior satisfied the failure-to-meet-basic-needs criterion for

commitment. He asserts that Dr. Vallabhaneni was the State's sole witness and that Dr.

Vallabhaneni had not treated him for over six years; therefore, the State's case rested on

historical facts and not his current behavior. The respondent argues that his counsel's lack

of questioning on this matter prejudiced him. Because the respondent was intentionally

uncooperative when Dr. Vallabhaneni tried to interview him, Dr. Vallabhaneni properly

based his testimony on his meetings with the respondent, the respondent's clinical record, 22 information from the respondent's treating psychiatrist, and the respondent's treatment plan

review. This included both historical and current information on the respondent. The

State did not fail to provide direct evidence of how the respondent would be unable to meet

his basic needs if released from Chester Mental Health Center. Counsel's performance

with respect to direct evidence presented by the State was not deficient and did not

prejudice the respondent.

¶ 45 The respondent argues that he need not prove the Strickland element of prejudice

because his counsel failed to subject the State's case to meaningful adversarial testing.

Where counsel entirely fails to subject the State's case to meaningful adversarial testing,

prejudice will be presumed. People v. Hattery,

,

(1985). Respondent's counsel did not fail to subject the State's case to meaningful

adversarial testing. Counsel did not concede that the respondent was subject to

involuntary commitment. Trial counsel moved for an independent evaluation of the

respondent. He questioned prospective jurors to find out any potential biases and to

ensure that the respondent would receive a fair trial. He exercised peremptory challenges

to potential jurors. He gave an opening and closing statement. He conducted

cross-examination of the State's witness, Dr. Vallabhaneni. Trial counsel conducted the

direct examination of the respondent in which he tried to elicit testimony from the

respondent to show that he was able to provide for his basic physical needs. After the

respondent referred to some of his crimes, the State attempted to ask him questions about

his criminal history. Counsel objected, and the objections were sustained. Because the

respondent's trial counsel did subject the State's case to meaningful adversarial testing, the 23 respondent needed to show prejudice to show his counsel was ineffective.

¶ 46 The trial court erred in giving the jury instructions that included unconstitutional

and outdated criteria for involuntary commitment. However, one of the grounds

presented to the jury for involuntary admission was valid. The respondent was not

prejudiced by the erroneous jury instructions because the jury returned a general verdict

and there was clear and convincing evidence presented to show that the respondent was

unable to care for his basic needs if not subject to involuntary commitment. The

respondent was not denied effective assistance of counsel. His counsel's failure to object

to the erroneous jury instruction did not prejudice him. Because Dr. Vallabhaneni

explained the basis of his testimony and it was based on the respondent's condition at the

time of the hearing, counsel's failure to question him about whether it rested on historical

facts and not his current state did not prejudice the respondent. Counsel did not fail to

subject the State's case to meaningful adversarial testing.

¶ 47 CONCLUSION

¶ 48 For the foregoing reasons, the judgment of the circuit court of Randolph County is

affirmed.

¶ 49 Affirmed.

24

NO. 5-11-0495

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

In re JAMES W. ) Appeal from the ) Circuit Court of (The People of The State of Illinois, ) Randolph County. ) Petitioner-Appellee, ) ) v. ) No. 11-MH-126 ) James W., ) Honorable ) Richard A. Brown, Respondent-Appellant). ) Judge, presiding. ______________________________________________________________________________

Opinion Filed: May 30, 2014 ______________________________________________________________________________

Justices: Honorable Bruce D. Stewart, J.

Honorable Richard P. Goldenhersh, J., and Honorable Stephen L. Spomer, J., Concur ______________________________________________________________________________

Attorneys Veronique Baker, Director, Barbara A. Goeben, Staff Attorney, Illinois for Guardianship & Advocacy Commission, 4500 College Avenue, Suite 100, Appellant Alton, IL 62002 ______________________________________________________________________________

Attorneys Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Kelly M. for Stacey, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Appellee 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 ______________________________________________________________________________