No. 1-12-2918 Opinion filed June 30, 2014 Third Division ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________

In re COMMITMENT OF ) ) Appeal from the Circuit Court EDWARD GAVIN ) of Cook County. ) (The People of the State of Illinois, ) ) No. 06 CR 80009 Petitioner-Appellee, ) ) v. ) The Honorable ) Michael B. McHale, Edward Gavin, ) Judge, presiding. ) Respondent-Appellant). ) ______________________________________________________________________________

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.

OPINION

¶1 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 1-12-2918

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.

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¶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

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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—

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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

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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

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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, and reports from other mental health professionals. Gavin refused to be

interviewed by Tsoflias, but consented to an interview with Weitl.

¶ 14 Referring to the Diagnostic and Statistical Manual of Mental Disorders fourth edition text

revision (DSM-IV-TR), both experts diagnosed Gavin with paraphilia, not otherwise specified,

nonconsent (PNOS nonconsent). Tsoflias diagnosed Gavin with a personality disorder, not

otherwise specified, with antisocial and narcissistic features, while Weitl diagnosed him with

antisocial personality disorder. The DSM-IV-TR generally defines paraphilia as "recurrent,

intense sexually arousing fantasies, sexual urges, or behaviors generally involving 1) nonhuman

objects, 2) the suffering or humiliation of oneself or one's partner, or 3) children or other

nonconsenting persons that occur over a period of at least 6 months."Am. Psychiatric Ass'n,

Diagnostic & Statistical Manual of Mental Disorders 566 (4th ed., text rev. 2000). The experts

testified that none of these disorders will resolve themselves and, accordingly, require treatment.

¶ 15 PNOS nonconsent, while commonly accepted in the mental health community, is a

controversial diagnosis and is sometimes made in error. The diagnosis cannot be based solely on

the commission of multiple rapes, but the experts believed the diagnosis to be justified here.

Tsoflias believed Gavin met the criteria for PNOS nonconsent because he had, on multiple

occasions, forced women to have sex with him since the age of 16. She based this diagnosis on

his conduct between 1975 and 1991, but admitted that from 1991 to 2012 Gavin has not

committed any sex crimes. She also opined that (i) as a result of uncontrollable urges for

nonconsensual sex, Gavin spent most of his life in prison; and (ii) Gavin had a pattern of

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substance abuse before committing sexual crimes, which made him less able to control his

behavior.

¶ 16 As to the personality disorder diagnosis, the disorder is defined as "personality or

characteristics that are not considered normal in [the person's] culture *** that interfere with

their ability to interact with others or impair their function." Tsoflias opined that Gavin's

personality disorder manifested itself by his "repeatedly engaging in behaviors that are grounds

for arrest," and that he "shows a lack of concern for the safety of others, *** exhibited through

his violent acts and his disregard for the consequences that his acts have on his victims." Tsoflias

admitted that the personality disorder alone would not satisfy the SVP Act's element of a mental

disorder, but that the two diagnoses work together, with the personality disorder causing Gavin

to disregard the law and the safety of others, and the PNOS nonconsent making him desirous of

nonconsensual sex.

¶ 17 The experts used two actuarial instruments to determine Gavin's risk of sexually

reoffending: the Static 99R and the Minnesota Sex Offender Screening Tool-Revised (MnSOST-

R). The Static 99R examines several static characteristics associated with the risk of sexually

reoffending. The MnSOST-R looks at several static and dynamic factors to do the same. Both

instruments have only moderate predictive accuracy. Under both measures Gavin fit in the high

risk category.

¶ 18 Weitl noted that other sex offenders who scored as high as Gavin on the MnSOST-R

recidivated at a rate of 74% within six years. The MnSOST-R has been criticized for having a

small sample size. Moreover, some experts in the field question its predictive accuracy because

most individuals that it places in a high-risk category are civilly committed and cannot be further

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studied. Other sex offenders who scored similarly to Gavin on the Static 99-R, sexually

recidivated at a rate of 37.9% within 5 years, and 48.6% within 10.

¶ 19 Weitl also had Gavin take the Multiphasic Sexual Inventory II (MSI-II). That test showed

Gavin's thinking and behaviors in the average range compared to other men convicted of rape,

and that he has trouble understanding his urges and fantasies.

¶ 20 The experts also considered other dynamic and protective risk factors, which increase or

decrease the chance a person will sexually reoffend. Among the factors increasing the risk of

reoffending are that Gavin (i) committed sexual offenses as a minor and as an adult; (ii)

exhibited antisocial behavior beginning at a young age; (iii) never completed sex offender

treatment; (iv) has problems with intimacy, never having been married or in a long-term

relationship; (v) has a criminal lifestyle; (vi) has violated his parole; (vii) cannot control his

behavior; (viii) has a history of violence; (ix) has deviant sexual interest in nonconsensual sex;

(x) seems unable to control his behavior; (xi) uses pornography and prostitution; (xii) has anti-

social personality disorder; and (xiii) is a substance abuser who was intoxicated when he

committed sex offenses. The experts opined that each of these factors increases the chance that

Gavin would sexually reoffend.

¶ 21 According to the State's experts, there were no protective factors that decreased Gavin's

likelihood of reoffending. Protective factors include the completion of sex offender treatment,

having a debilitating illness with less than 15 years to live, and living in the community for a

significant time without reoffending. Both experts admitted that Gavin's arrest while on parole in

1996 did not involve any sexual offenses. Moreover, Gavin suffers from high blood pressure,

diabetes, hypertension, hyperthyroidism, and osteoarthritis in his right hand. Some of the

conditions are controlled by medication. Neither expert considered these diseases as protective

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factors because they were not life-threatening. But they could not say how any of the conditions

specifically affected Gavin's likelihood of reoffending. Moreover, Gavin's records from DHS

indicate that he has "asymptomatic ischemic changes on his EKG," but the experts did not know

what that meant and did not consider it as a protective factor.

¶ 22 Gavin had a right orchiectomy, the removal of his right testicle, in 1997. Neither expert

considered this a protective factor. But they did not consult with any physicians to determine

whether the removal of one testicle would alter Gavin's sexual desires. Gavin also needs to have

his hip replaced after suffering severe degenerative damage. He now uses a handicap shower, a

lower bunk, walks with a cane, and is on "unassigned" work status. The experts did not consider

any of these to be protective factors because, they opined, a medical condition could reduce the

risk of sexual recidivism only if it was untreatable and would kill the individual within 15 years.

¶ 23 Based on the actuarial instruments, and the dynamic and protective risk factors, the

experts believed there to be a substantial probability that Gavin will engage in future acts of

sexual violence.

¶ 24 Early in Weitl's testimony, the trial court instructed the jury:

"The same as the last doctor, folks. I'm allowing this witness to testify, in part, to

records including but not limited to police reports, Department of Corrections

records, Department of Human Services records, psychological evaluations,

psychological articles and statements, other than those made by the respondent to this

witness.

These materials are not being admitted into evidence. The testimony is being

allowed for a limited purpose. It's being allowed so that the witness may tell you what

she relied on to form her opinion. The material being referred to is not evidence in

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this case and may not be considered by you as evidence. You may consider the

material for the purpose of deciding what weight, if any, you'll give the opinions

testified to by this witness."

¶ 25 Gavin presented no evidence during his case-in-chief.

¶ 26 Before closing arguments, the trial judge instructed the jury the arguments are not

evidence. During closing arguments, the State again referred to the facts of Gavin's sex crimes:

"MS. RIVERS: *** So you heard from two doctors. And what both of them told

you was that the respondent was [a sexually violent person]. ***

They looked at his total criminal history. They read all of his records that were in

front of them. And when they did, they came to the conclusion that I believe you will.

When looking at his criminal history it went all the way back to 1974. Where a ten

year old was grabbed by the respondent.

Then in 1975 the respondent was convicted. Remember he went into an elevator

where a 14 year old was, and he raped that 14 year old. He was convicted of raping

that 14 year old. Earlier that day *** he attempted to rape another woman who was

21, and he was convicted of that offense.

Mr. Gavin goes to prison for those two offenses, and he stays there for a few

years, but by 1980 he's on parole. And when he's on parole he attempts to rape

another woman. As a matter of fact, he was convicted by a jury for attempting to pull

a 15 or 16 year old down the hall that took police officers to bang him on the head

with a gun in order for him to stop his—

MR. COYNE: Judge, objection.

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THE COURT: Overruled. Ladies and gentlemen, you should rely on your own

recollection of the evidence.

Go ahead.

MS. RIVERS: In order for him to stop his attempted rape on her. Mr. Gavin was

again convicted and sentenced and spent time in prison.

By 1988, Mr. Gavin was out again, and this time after being with prostitutes he

finds a maid in the hotel that he was in, who was doing her job, a 48-year-old woman,

and there he commits aggravated sexual assault where he forces her.

MR. COYNE: Same objection, Judge.

THE COURT: Let's have a side bar."

¶ 27 At side bar, the trial judge overruled the objection and admonished the State not to

represent the facts of Gavin's crimes as substantive evidence. The court noted that it did not think

the jury had been prejudiced yet. The State continued its argument:

"MS. RIVERS: *** I would like to bring your attention back to what the doctors

relied on when they came to the conclusion that the respondent is a sexually violent

person.

One of the things that they looked at was that in 1988, after being released from

the 1980 case, the respondent, after a full day of, or a day where he had prostitutes

with him, he goes to and he does sexually offend against a 48-year-old maid at the

hotel.

The doctors didn't just look at that. They continued. They looked at, again, all of

his records. Dr. Weitl told you, and so did Dr. Tsoflias, that while in the [DOC], the

respondent continued to sexually act out."

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The State then described Gavin's disciplinary problems in prison. It then went on to argue how

Gavin's crimes are indicative of his mental disorders and discuss the risk analysis measures the

experts performed:

"[The experts] diagnosed the respondent with mental disorders.

Now, the first one they agreed hundred percent on. The paraphilia not otherwise

specified, sexually attracted to non-consenting persons. And you see their logic when

you look back at the criminal cases. It's their intent [sic] reoccurring that occurs over

a six-month period to act out either actions or fantasies.

And when you look back at the criminal history, you see it started in 1974. It went

from '74 to '80, to '88, to'90. Clearly it was continuing beyond, well, well beyond the

six months. And clearly, they were intense enough that he had to be hit on the head

with a gun in order to be removed from one of his victims.

***

And what they told you about antisocial personality disorder was that it is a

pervasive pattern of failing to follow social norms.

Well, we have that through the history of Mr. Gavin. We have burglaries, we have

aliases, we have batteries, and of course there are the sex offenses. So *** they found

these traits, and gave him that diagnosis."

¶ 28 Gavin argued that the State had not proven beyond a reasonable doubt that he was a

sexually violent person. He noted that he had not sexually offended since 1991. He pointed to the

expert's failure to investigate or consider his medical conditions, and their reliance on inaccurate

risk assessment tools.

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¶ 29 During rebuttal, the State argued that "when you [the jury] go back to the room and you

begin deliberations, you've heard this evidence and that presumption [that Gavin is not a sexually

violent person] is now gone." Gavin objected, and the court sustained the objection and told the

jury to disregard the comment.

¶ 30 The State continued, describing Gavin's argument as "twisting," "disingenuous," and

"ridiculous." Gavin objected, and the court overruled the objection. The State then continued,

referring to the facts underlying Gavin's convictions as substantive evidence:

"MS. WELKIE: Counsel wants you to believe that since 1991, when he took a

woman from, when his sexual urges and desires forced a women [sic], who was

employed by the [DOC] as a principal or school teacher into room down to the

ground fondling her and kissing her, and he was reprimanded for it and got a ticket

for it because since that date he hasn't forced another woman to the ground—

MR. COYNE: Objection.

THE COURT: Overruled.

MS. WELKIE: —somehow this paraphilia not otherwise specified has gone away.

That is absolutely against the manifest weight of the evidence. ***

We have met our burden. You heard these are lifelong chronic conditions that do

not go away. And they can only be dealt with effectively with treatment and treatment

he hasn't had.

And look at his, look at his time in the [DOC]. *** He gets three sexual

misconduct tickets for having his genitals out in front of people, telling people he

wants to be in a long-term relationships, attempting to assault someone *** as you

heard from what to doctors relied upon, to the fact that it took correctional guards and

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other inmates, multiple people, to pull him off of this woman. Just as he had to be, as

you heard the doctors relied upon, pulled off of that girl back in 1980. These are urges

that run strong."

¶ 31 Regarding the effects of Gavin's health on his risk to sexually reoffend, the State argued:

"Let's get real here. The doctors have told you that it's a debilitating condition,

debilitating conditions, that are the types of conditions that they are looking at to

overcome this overwhelming evidence of risk. *** when you go back into that jury

room, you don't have to leave your common experience and your commonsense at the

door. You take it back with you.

And here is the list of what is supposedly so debilitating, according to Counsel,

that it would justify lowering his risk *** hypertension. Oh, there's a stopper.

Because how many people in the United States right now suffer from hypertension

and have to go to work every day, and have to have it controlled by medication?

*** [T]hen the fact that he has only one testicle. Well, oh, my gosh, I'm glad no

one told Lance Armstrong that you can't ever accomplish your goals, and in his case

his goals are raping people ***.

There's the fact that he is all of 53 years old. Well, my goodness. Fifty-three years

old. Isn't he old? Born in 1958. Well, you know what, here's the class he's with from

1958. Madonna, Evelyn [sic] Degeneres, Tim Burton, Gary Altman, Alex Baldwin,

Drew Carey, Tim Robbins, Kevin Bacon is six days older than him, and Barb Cuban

is seventeen days older than him. Oh, wow, that age and those disabilities are really,

really, really, really, really, going to be able to cause a protective factor enough to be

able to knock down the amount of risk in this case."

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The State also characterized Gavin's arguments as an attempt to disregard the testimony of both

experts. "[W]hat they're asking you to do is to throw out the testimony of two experienced,

educated, and trained psychologists, doctors, experts, people that they stipulated were experts in

this area ***. That's ridiculous."

¶ 32 After argument, the court instructed the jury that evidence "received for a limited purpose

should not be considered by you for any other purpose." The court reiterated to the jury that they

could give the expert opinions any weight they wished, and that the underlying basis of the

expert's opinions was only admitted to help determine that weight.

¶ 33 As the jury deliberated, Gavin moved for a mistrial, arguing that (i) the State's sarcastic

tone was inappropriate, (ii) the State attempted to diminish its burden of proof, and (iii) the State

made inappropriate, personal attacks on Gavin's counsel. While the court acknowledged the

State's sarcastic tone, it denied the motion.

¶ 34 The jury found Gavin to be a sexually violent person under the SVP Act. The State then

requested an immediate disposition. Gavin argued that an initial commitment order was proper,

but the court should hold a separate dispositional hearing to determine whether Gavin could be

subject to conditional release. The court declined to hold a dispositional hearing and, based on

the evidence at trial, committed Gavin to a secure treatment and detention facility. Gavin later

moved for a new trial, which the court denied. Gavin timely appeals.

¶ 35 ANALYSIS

¶ 36 Gavin appeals on four grounds: (i) the court improperly limited his voir dire of the jury;

(ii) the evidence failed to establish that he was a sexually violent person under the SVP Act; (iii)

the State made improper remarks during its opening and closing; and (iv) the trial court erred in

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failing to hold a dispositional hearing. While we reverse on the third issue and remand for a new

trial, we will address the first issue on the voir dire.

¶ 37 Voir Dire

¶ 38 Gavin argues that he should have been allowed to ask whether the potential jurors could

be fair and impartial given (i) he had been convicted of aggravated criminal sexual assault,

attempted rape, rape, and indecent liberties with a child; and (ii) he had sexually offended against

a juvenile. The trial court disagreed and only allowed him to ask whether jurors could be fair and

impartial knowing Gavin was convicted of sexually violent offenses four times. Under the

circumstances, we find the voir dire limitation reasonable.

¶ 39 When impaneling a jury in a civil case, the Illinois Supreme Court Rules provide that the

trial judge conduct the voir dire examination of prospective jurors and question them on matters

touching their qualifications to serve in the case. Ill. S. Ct. R. 234 (eff. May 1, 1997). "One of the

purposes of voir dire is to filter out those potential jurors who are either unable or unwilling to be

fair and impartial." In re Commitment of Trulock,

. "[V]oir dire is

not to be used to indoctrinate jurors or to impanel a jury with a particular predisposition" or

"ascertain prospective jurors' opinions with respect to evidence to be presented at trial." (Internal

quotation marks omitted.) In re Commitment of Butler,

.

¶ 40 Where a trial deals with a controversial subject matter, prospective jurors should be

questioned about the controversial subject matter to elicit facts of possible bias or prejudice

regarding the controversial subject matter. See id. ¶ 23. But it is inappropriate to use voir dire to

gauge the potential juror's reactions to specific evidence. Id. ¶ 21. The manner and scope of voir

dire—including whether to allow counsel's supplemental questions—rests within the trial court's

sound discretion. Id. ¶ 15.

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¶ 41 We review the limitations on supplemental questions for an abuse of discretion, and will

reverse only when the trial court's conduct thwarts the selection of an impartial jury. Id.; see e.g.

In re Commitment of Hill,

(Tex. 2011) (questions on bias toward homosexuals

proper and should have been allowed). "So long as the procedures employed by the circuit court

provided a reasonable insurance that prejudice, if any, would be discovered, the court's exercise

of discretion would be upheld." People v. Allen,

(2000).

¶ 42 For instance, in In re Commitment of Butler,

, the State filed a

petition to commit Butler as a sexually violent person. Id. ¶ 3. The trial court did not allow

Butler to ask the jurors if they could be fair given that he had been convicted of three sexually

violent offenses. Id. ¶ 14. Instead, the court only allowed the respondent to ask, "Knowing that

Mr. Butler has already been convicted of a sexually violent offense, can you be fair in

determining whether or not he is a sexually violent person in this case?' " Id. ¶ 5. On appeal,

Butler claimed this limitation—removing the number three—thwarted the selection of an

impartial jury. Id. ¶ 14. This court disagreed, holding the trial court did not abuse its discretion in

refusing to permit voir dire on the number of sexually violent offense, and that a "more general

inquiry was sufficient to ascertain any existing bias or prejudice for sexually violent offenders

that would preclude a juror from being fair and impartial." Id. ¶ 24.

¶ 43 Under Butler, the trial court does not abuse its discretion when limiting counsel's inquiry

to bias arising from convictions for sexually violent offenses. See In re Commitment of Butler,

. This inquiry sufficiently allows for the discovery of bias or

prejudice toward a person who commits rape or aggravated sexual assault.

¶ 44 Gavin points to the State's experts' testimony about the graphic details of Gavin's crimes,

details which could evoke passion and outrage, and argues that he should have been allowed to

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question the potential jurors about his crimes to determine whether their nature would cause

prejudice or shock. But it is not the purpose of voir dire to preview the evidence for the jury, or

to measure the jurors' reactions to certain facts. In re Commitment of Butler,

, ¶ 17. If it were, attorneys in SVP Act cases might preview the whole trial before the

venire.

¶ 45 Next, Gavin argues that he should have been allowed to inquire regarding sex crimes

against juveniles, which can incite passion and bias in many. See People v. Bailey,

(1993) (Stouder, J., dissenting) ("There are few crimes more heinous and that evoke

more outrage than sex crimes with a child victim."). Gavin maintains that the trial court should

not have foreclosed inquiry into whether hearing about his child victims might cause bias or

prejudice in a juror. See People v. Strain,

(2000) ("The jurors must harbor no

bias or prejudice which would prevent them from returning a verdict according to the law and

evidence."). But that is not the same question Gavin wanted to ask the jury. The question Gavin

sought to ask—"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?"—differs. Gavin never proposed

to ask potential jurors whether they could be impartial knowing that some of the victims of his

sexually violent offenses were children. (The circuit court reasonably precluded the name of

Gavin's crimes during voir dire.) Accordingly, the circuit court did not abuse its discretion in

rejecting the question as posed.

¶ 46 State's Opening Statement and Closing Arguments

¶ 47 Gavin contends the State compromised his right to a fair trial, pointing to several

remarks during both the State's opening statement and closing arguments. We agree, finding the

totality of the State's remarks so prejudicial that the jury admonitions could not provide a cure.

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¶ 48 First, Gavin asserts that during closing argument the State diminished its presumption

that Gavin is not a sexually violent person as well as its burden of proof.

¶ 49 "We will not interfere with the trial court's determination of the propriety of the

prosecution's closing argument absent a clear abuse of discretion resulting in manifest prejudice

to the defendant." People v. Willis,

, ¶ 102. In proceedings under the

SVP Act, the State has the burden of proving each element beyond a reasonable doubt. 725 ILCS

207/35(d)(1) (West 2010). The respondent carries a presumption during trial that he or she is not

a sexually violent person. In re Commitment of Fields,

. The

State has wide latitude in closing arguments, and may comment on and draw inferences from the

evidence. People v. Miller,

(1998). But the State may not tell the jury

that the presumption has been stripped away during its closing argument. See People v. Keene,

(1995).

¶ 50 During rebuttal argument, the State argued that the presumption was "now gone." Gavin

objected, and the court sustained his objection, instructing the jury to disregard the comment.

Gavin urges us to find that the prejudice remained uncured despite the fact that trial court

properly instructed the jury on the presumption, sustained Gavin's timely objection, and gave a

curative instruction. "We find no prejudice where prompt objections were sustained and, where

appropriate, the jury instructed." People v. Wilson,

(1990). This was

not, however, the only grave error that gives rise to potential prejudice, as we will discuss.

¶ 51 Next, Gavin complains about how the State argued that the jury would have to believe

that the experts had lied to find in his favor, an impermissible argument under Illinois law.

"Though the State is given wide latitude in closing arguments [citation], the State is not allowed

to misstate the law or facts of the case, and it is not allowed to diminish its burden of proof."

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People v. Carbajal,

. It is improper for the State to argue that to

return a verdict in favor of the respondent, the jury must believe that the State's witnesses are

lying. People v. Miller,

(1998). This is a misstatement of law and

improperly shifts the burden of proof to the respondent, denying the respondent a fair trial.

People v. Wilson,

(1990). "The correct standard for consideration of

the evidence *** is not whether one side is more believable, but whether, taking all of the

evidence into consideration, *** every essential element of the charge has been proven beyond a

reasonable doubt."

.

¶ 52 In its rebuttal, the State characterized Gavin's argument as "throw[ing] out" the testimony

of both experts, and "substitut[ing their] own judgment *** for all of the evidence." Gavin did

not object. As such, this issue is forfeit, and we review it under the criminal plain error doctrine.

People v. Curry,

.

¶ 53 The State argues that we should apply the civil plain error doctrine to SVP Act cases. We

disagree. Our supreme court has not yet decided whether the criminal or civil plain error analysis

applies to proceedings under the SVP Act. See In re Commitment of Fields,

. Application of the plain error rule in civil proceedings is "exceedingly rare." In re

Commitment of Curtner,

. It applies " 'where the act complained

of was a prejudicial error so egregious that it deprived the complaining party of a fair trial and

substantially impaired the integrity of the judicial process.' " Wilbourn v. Cavalenes,

(2010).

¶ 54 This is much stricter than the criminal plain error rule. The reason being that civil

proceedings do not typically implicate Sixth Amendment concerns.

While proceedings under

the SVP Act are civil in nature (725 ILCS 207/20 (West 2010)), they implicate Sixth

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Amendment rights, including the right to be informed of the nature of the accusation (725 ILCS

207/25(a) (West 2010)), the right to counsel (725 ILCS 207/25(c)(1) (West 2010)), the right to

call and confront witnesses (725 ILCS 207/25(c)(3) (West 2010)), the right to an impartial jury

(725 ILCS 207/25(d) (West 2010)), and the right to a speedy trial (725 ILCS 207/35(a) (West

2010)). These are all subjects that fall within the purview of sixth amendment guarantees.

Moreover, the SVP Act gives the respondent the right against self-incrimination (725 ILCS

207/25(c)(2) (West 2010)), a fifth amendment right. All of these rights make these proceedings

quasi-criminal in nature.

¶ 55 Moreover, the possibility of indefinite commitment in a secure facility places at stake a

vital liberty interest, as serious as the consequences of a criminal trial. See Kansas v. Hendricks,

(1997) (Kennedy, J., concurring) ("the practical effect of [an SVP] law may

be to impose confinement for life"); 725 ILCS 207/40(a) (West 2010) ("If a court or jury

determines that the person *** is a sexually violent person, the court shall order the person to be

committed *** until such time as the person is no longer a sexually violent person."); In re

Commitment of Weekly,

; Townes v. Commonwealth of Virginia,

(Va. 2005) ("a person subjected to an involuntary civil commitment proceeding

has a substantial liberty interest in avoiding confinement in a mental hospital"). Hence,

proceedings under the SVP Act have much in common with criminal cases as compared to civil

cases. Consequently, the criminal plain error rule should apply to appeals from SVP Act

proceedings. See In re Detention of Sveda,

(2004) (applying criminal

plain-error rule to SVP Act case); In re Commitment of Bushong,

(2004) (same); In re Detention of Traynoff,

(2005) (same).

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¶ 56 The criminal plain error doctrine allows us to reach a forfeited error that affects

substantial rights where: (i) the evidence is so closely balanced, the jury's guilty verdict might

have resulted from the error and not the evidence; or (ii) the error is so serious the defendant was

denied a substantial right and, thus, a fair trial. People v. Ware,

.

"Our first step in plain error review is to determine whether any error occurred at all." People v.

Sullivan,

.

¶ 57 We do not believe it was error for the State to characterize Gavin's arguments as a request

to "throw out" and "ignore" all the expert testimony. The prosecution should not make arguments

that tend to shift the burden of proof to the respondent, like having to prove one witness or

another a liar. See People v. Miller,

(1998) (finding plain error where

prosecutor argued that to acquit defendant jury would have to find all State's witnesses were

lying). But calling a lay witness a liar is not the same as arguing that an expert's opinion and its

bases are valid or invalid. "[T]he State may rely on expert witness opinion and in doing so may

also explain the basis for those opinions." In re Commitment of Butler,

. It is proper for both parties to argue how much weight the jury should give an

expert opinion, in accordance with the court's instructions. Here, after arguments, the court

properly instructed the jury to give the experts' opinions "whatever weight you think [they]

deserve." While the rebuttal mischaracterizes Gavin's argument, the State did not argue that the

only way to find in favor of Gavin was to "throw out" the experts' testimony. Thus, no error, or

plain error, occurred.

¶ 58 Gavin also accuses the State of improperly attacking his counsel during the closing for

calling Gavin's arguments "twisting and disingenuous." The court overruled Gavin's objection to

these remarks. "Unless predicated on evidence that defense counsel behaved unethically, it is

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improper for a prosecutor to accuse defense counsel of attempting to create reasonable doubt by

confusion, misrepresentation, or deception." People v. Johnson,

(2003).

¶ 59 In describing Gavin's argument as "twisting and disingenuous," the prosecutor did not

overstep the boundary of permissible argument as set forth in Johnson. While the comment may

be unprofessional, we do not believe it transmits a prejudicial connotation.

¶ 60 Gavin argues the State erred in saying that Gavin's counsel wanted the jury "to leave your

common experience and your common sense at the door," and also made numerous sarcastic

comments about Gavin's health as it relates to his risk of sexual recidivism, to which Gavin did

not object to at the time. As such, we review it for plain error (People v. Curry,

).

¶ 61 Gavin argued that he did have serious medical conditions that prevented him from

reoffending. The State argued the jury did not have to abandon common sense, implying Gavin's

argument was absurd. Either party may argue that an expert's opinion is contrary to or in line

with common sense and that the opinion ignores or uses the best available facts. People v.

Daniels,

(2009). Accordingly, the State's invitation to the jury to use

common sense to assess its experts was proper.

¶ 62 As to the State's use of sarcasm, we again review for plain error. The trial court

acknowledged that "there was a note of sarcasm throughout some of the argument by Ms.

Welkie, which in [its] opinion having been in [the criminal] courthouse for now going on 20

years, [it did not] find all that uncommon." Nevertheless, courts often condone sarcasm. The

prosecutor's words themselves indicate an extreme level of sarcasm, and we can only imagine the

inflection, tone, and manner in which the words were delivered. By making light of a serious

issue at the penultimate point of the trial, what comes across in the transcript is not argument as

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much as ridicule and derision at its harshest. This is not only offensive; it also is unprofessional.

See People v. Burton,

(2003); see People v. Moss,

, 174-

75 (2001) (McMorrow, J., specially concurring) (describing sarcasm as improper and

unprofessional).

¶ 63 We are aware that "it is entirely proper for a prosecutor to denounce a defendant's

wickedness, engage in some degree of invective, and draw inferences unfavorable to the

defendant if such inferences are based upon the evidence." (Internal quotation marks omitted.)

Burton,

. But we believe in this case the prosecution went too far. Cf.

(finding no error where remarks were "not out of proportion to what the jury properly

considered as evidence").

¶ 64 This is that rare case where, in the heat of closing, the State's arguments reached the

extreme, crossed over from merely tough talk into the realm of inflammatory rhetoric designed

to improperly appeal to the juror’s emotions. Though denominated a civil proceeding, the

deprivation of Gavin's liberty is at stake, and we look at criminal, rather than civil, jurisprudence

for guidance. As an aside, we cannot ignore the extreme reluctance of trial judges to declare a

mistrial for misdeeds similar to those here. Trial judges in these situations have been known to

say either out loud or to themselves that the appellate court will “figure it out later.”

¶ 65 Most of the prosecutor's sarcasm concerned the effect of Gavin's health problems on his

risk of sexually reoffending. Her comments included: "Let's get real here. *** Oh, there's a

stopper. Because how many people in the United States right now suffer from hypertension. ***

Well, oh, my gosh, I'm glad no one told Lance Armstrong that you can't ever accomplish your

goals, and in his [Gavin's] case his goals are raping people *** . Well, my goodness. Fifty-three

years old. Isn't he old? Born in 1958. Well, you know what, here's the class he's with from 1958.

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[List of celebrities] *** Oh, wow, that age and those disabilities are really, really, really, really,

really, going to be able to cause a protective factor *** ." The record is replete with this kind of

incendiary language. The State's rebuttal was disproportionately sarcastic and not based on the

evidence. See Burton,

(finding no error where remarks were "not out

of proportion to what the jury properly considered as evidence"). Moreover, the State's reference

to celebrities had nothing to do with the issues in the case, nor was there any way for the jury to

confirm its accuracy.

¶ 66 The prosecution must be above this kind of mockery. It is one thing to point out an illogical

argument. It is another, much more damaging and prejudicial route, to continuously mock the

respondent, an individual who, according to the State, has an abnormal and dangerous mental

illness. Doing so inflames the passions of the jury, and distracts it from properly considering the

evidence of Gavin's risk of sexual recidivism. We will consider this error in light of the others.

¶ 67 Gavin next asserts that the State should not have been allowed to argue the facts of

Gavin's sex crimes as substantive evidence. We agree. We review evidentiary rulings for an

abuse of discretion, which 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."

(Internal quotation marks omitted.) In re Commitment of Doherty,

(2010). The trial court is granted great discretion in these rulings to ensure that the jury will not

be mislead or deceived into using evidence for an improper purpose. The judge should take

special care in conducting jury trials under the SVP Act to ensure that the jury's verdict is not

used to punish the respondent for his past crimes. See In re Lance H.,

(noting dual objectives of involuntary commitment are (i) to provide care for those unable to

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care for themselves due to mental illness, and (ii) to protect society from dangerously mentally

ill).

¶ 68 Experts may give their opinions based on facts not in evidence if the facts are of a type

reasonably relied on by experts in their particular field. People v. Nieves,

(2000); see Ill. R. Evid. 703 (eff. Jan. 1, 2011); Ill. R. Evid. 705 (eff. Jan. 1, 2011). The facts

underlying an expert's opinion are not considered substantive evidence unless separately

admitted. In re Commitment of Doherty,

. The prosecutor should not refer

to this type of evidence as substantive during closing argument. People v. Murphy,

(1987); see In re Commitment of Butler,

("In its

quest to sustain its burden, the State may rely on expert witness opinion and in doing so may also

explain the basis for those opinions.").

¶ 69 "A 'prosecutor's comments in closing argument will result in reversible error only when

they engender "substantial prejudice" against the defendant to the extent that it is impossible to

determine whether the verdict of the jury was caused by the comments or the evidence.' " People

v. Kirchner,

(2000); People v. Burton,

(2003)

(holding argument does not prejudice jury where evidence of guilt overwhelming and argument a

fair rendition of facts of the case). The challenged comments must be viewed in the context of

the whole argument, and the totality of the record. See Kirchner,

.

¶ 70 The State argues that this court's opinion in In re Commitment of Butler,

, indicates that the prosecutor did not err. We disagree. Butler is distinguishable in

two ways. First, unlike here, the prosecutors in Butler framed the facts underlying the

respondent's past convictions as a "deviant pattern" of behavior the experts relied on in reaching

their diagnosis. Id. ¶ 33. While there might have been some avoidable prejudice arising from the

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Butler prosecutors' depiction of the substantive facts, they qualified their remarks by repeatedly

referencing the doctor experts' reliance on the substantive facts.

¶ 71 Here, the State insufficiently tied the underlying facts to the testimony that Gavin had a

mental disorder. For example, regarding PNOS nonconsent, the State argued, "when you look

back at the criminal history, you see it started in 1974. It went from '74 to '80, to '88, to '90.

Clearly it was continuing beyond, well, well beyond the six months. And clearly, they were

intense enough that he had to be hit on the head with a gun in order to be removed from one of

his victims." Regarding the antisocial personality disorder, the State argued, "We have

burglaries, we have aliases, we have batteries, and of course there are the sex offenses. So ***

they found these traits, and gave him that diagnosis."

¶ 72 An expert may disclose hearsay " 'for the limited purpose of explaining the basis for his

[or her] opinion.' " In re Detention of Hunter,

(quoting People v.

Nieves,

(2000)). In SVP Act cases, the rubric of DSM-IV-TR allows experts

to diagnose paraphilia based on a person's behavior. See Am. Psychiatric Ass'n, Diagnostic &

Statistical Manual of Mental Disorders 566 (4th ed., text rev. 2000). Thus, the details of Gavin's

crimes inform the experts' diagnosis of PNOS nonconsent. In re Detention of Hardin,

(2009).

¶ 73 But the State repeatedly referred to the underlying facts as something other than the basis

for the experts' opinions. For example, the prosecutors stated that the experts were going to "tell"

or "show" the jury about Gavin's past sex crimes. The prosecutors referred to these hearsay

statements as "facts" and "evidence." Needless to say, the experts' testimony cannot be used to

show or tell about the facts underlying Gavin's crimes. None of those facts are in evidence. In

fact, it is the exact opposite. Those details can only be used by the jury to assess the weight of the

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experts' opinions, and not for the truth of the matter asserted. In re Commitment of Butler,

, ¶ 37 n.2 (noting admissibility of facts relied on by expert not exception to

the hearsay rule). For example, the fact that an expert relied on police reports or trial testimony

may strengthen their opinions in the eyes of the jury. The fact that an expert interpreted medical

records without medical training may do the opposite.

¶ 74 Moreover, the State argued the explicit facts underlying Gavin's convictions as a

narrative. It occasionally prefaced its recitation of these details by noting that these facts were

what the experts "relied on" to form their opinions. But, unlike in Butler, the prosecutors did not

mention how the experts relied on these facts to diagnose or assess Gavin. This narration of the

facts underlying Gavin's crimes, which at times reads as if Gavin was on trial for rape, was error.

It misdirected the focus of the case, disconnecting the underlying facts and the experts' use of

them. In other words, as a narrative, the underlying facts took on the cloak of evidence, thereby

leading the jury to consider these facts independent of the expert testimony.

¶ 75 The purpose of SVP Act is to identify sexually dangerous persons and force them into

treatment for their own good and for the safety of society. See In re Lance H.,

. Never should civil commitment proceedings be used to punish respondents for

their past crimes. See Kansas v. Hendricks,

(Kennedy, J., concurring) ("while

incapacitation is a goal common to both the criminal and civil systems of confinement,

retribution and general deterrence are reserved for the criminal system alone"). Here, the

prosecution, at the beginning and the end of the case, created substantial prejudice, encouraging

the jury to consider the facts underlying Gavin's crimes as substantive evidence, amplifying the

possibility that the jury would use the proceedings to punish him for his past acts. See Daniel

Krauss et als., The Impact of Case Factors on Jurors' Decisions in a Sexual Violent Predator

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Hearing, 20 Psychol. Pub. Pol'y & L. 135, 141 (2014) ("it is possible that jurors are double

counting prior convictions in their risk estimates—once through the evidence presented on prior

convictions, and again when they consider expert testimony that includes prior convictions as

part of its risk estimate").

¶ 76 Butler is further distinguishable in that the evidence in that case was not as close as it was

here. Where there is strong evidence of reasonable doubt, the effects of prejudicial acts increase

exponentially. See People v. Eddington,

(1984) ("misstatement of

evidence ***, in a close case, can be error"). In Butler, it does not appear that the experts were

subject to any meaningful cross examination or that there was any weakness inherent in their

testimony. See Butler,

. Here, Gavin's cross examination of the

State's experts indicated that they made a number of assumptions regarding Gavin's medical

records, which they had no training interpreting. They admitted that Gavin has a number of

ailments that affect his ability to move and to use force, but they declined to consider his

illnesses a protective factor. The experts further admitted that they did not believe Gavin had

committed any sexually deviant behavior since 1991, twenty-one years before trial. In other

words, Gavin gave the jury strong reasons to disregard the experts' opinions.

¶ 77 The State further argues that the trial court's jury instruction mitigated any prejudice. We

disagree. The trial court instructed the jury in accordance with Illinois Pattern Jury Instruction,

Civil, No. 2.04 (2008), stating that the bases of the experts' testimony was not evidence and

could only be used to evaluate their opinions. There is a strong presumption that the jurors

followed the instruction of the court. In re Detention of Lieberman,

(2007). But " '[t]here are some contexts in which the risk that the jury will not, or cannot, follow

instructions is so great, and the consequences of failure so vital to the defendant, that the

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practical and human limitations of the jury system cannot be ignored.' " Richardson v. Marsh,

(1987). This case presents such a context.

¶ 78 The jury here was properly instructed, but the prosecutors presented their arguments in

such a way to rebut the presumption that the instructions were followed. We acknowledge that

this instruction, in some circumstances, is confusing. When giving it, courts are asking the jury

to perform "mental gymnastics." David H. Kaye et als., The New Wigmore: A Treatise on

Evidence: Expert Evidence § 4.7.2 (2d ed. 2010) ("the jury is told not to consider the otherwise

inadmissible basis testimony for its truth. *** this limiting instruction is even more troubling

than most. It asks of juries something that is not just practically difficult, but logically

incoherent. *** [Because] expert basis testimony is only relevant—even for the limited purpose

of evaluating the expert's testimony—if it turns out to be true. If the expert's basis is false, any

conclusions reached on that basis are unsubstantiated and unhelpful. To admit basis testimony

for the nonhearsay purpose of jury evaluation of the experts is therefore to ignore the reality that

jury evaluation of the expert requires a direct assessment of the truth of the expert's basis. Having

invited the jury to make such an assessment, is it either fair or practical then to ask the jury to

turn around and ignore it?"). It matters a great deal not only what the prosecutors say, but how

they say it. By leaning so heavily on facts underlying Gavin's crimes, the State made the already

difficult mental gymnastics of the jury nigh impossible.

¶ 79 The prosecution under the SVP Act treads a fine line, and must be prudent enough to

know when its remarks regarding the respondent’s past deviant sexual actions expose the jury to

prejudicial matter. Moreover, it is the duty of the courts and the prosecutor to ensure that the

respondent receives a fair trial. People v. Sales,

(1986). In an SVP Act

case, the focus should not be on the respondent's past actions, but on whether the individual

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mental condition currently poses a risk of sexual recidivism. Accordingly, we believe the trial

court erred in not further limiting the prosecution's recitation of the experts' basis testimony.

¶ 80 CONCLUSION

¶ 81 The prejudicial impact of all the prosecutorial errors mandates a new trial. People v.

Boling,

. After the prosecution resorted to extreme sarcasm and

mockery in its rebuttal and referred to the underlying facts of Gavin's history of sexual crimes

and deviancy for the truth of the matter asserted, the jury could not have properly considered the

evidence. This is so because the evidence and arguments in favor of Gavin are strong enough to

require a new trial. Both experts admitted that they did not understand how some of Gavin's

ailments specifically affected his ability to sexually recidivate. Moreover, both experts admitted

that Gavin had not manifested any symptom of his paraphilia since 1991, 21 years before trial. If,

absent prosecutorial misconduct, the jury had been allowed to consider the evidence and

arguments, they could have found reasonable doubt that Gavin is a sexually violent person.

¶ 82 Accordingly, we reverse and remand for a new trial.

¶ 83 We decline to address the remainder of Gavin's appeal. As to the dispositional hearing,

we direct the trial court to consider its procedures in light of In re Commitment of Fields,

.

¶ 84 Reversed and remanded.

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