IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2003

The Respondent, Jeffrey Hargett, pled guilty to aggravatedcriminal sexual assault in two separate cases. 720 ILCS 5/12--14(West 1992). He was sentenced to concurrent terms of 12 years'imprisonment. Before his release, the State filed a petitionalleging that the respondent was a sexually violent person andshould be detained under the Sexually Violent Persons CommitmentAct (Act). 725 ILCS 207/1 et seq. (West 2000). After a jurytrial, the respondent was found to be a sexually violent personunder the Act. 725 ILCS 207/1 et seq. (West 2000). Following adispositional hearing, the trial court ordered the respondent tobe committed for institutional care in a secure setting. Onappeal, the respondent argues that the trial judge erred by: (1) failing to recuse himself; (2) refusing him a Frye hearingand thereby admitting evidence that was not generally acceptedwithin the scientific community; and (3) entering thedispositional order committing him to the Department of HumanServices for institutional care in a secure setting. We reverseand remand.

On February 25, 2000, the State filed a petition seekingthe commitment of the respondent to the Department of HumanServices pursuant to the Act. 725 ILCS 207/1 et seq. (West2000). In the petition, the State alleged that: (1) therespondent had been serving concurrent terms of 12 years'imprisonment for two cases of aggravated criminal sexual assault (720 ILCS 5/12--14 (West 1992)); (2) he was within 90 days of hisrelease time; (3) he had a mental disorder, pedophilia; and (4)he was dangerous because his mental disorders created asubstantial probability that he would engage in acts of sexualviolence.

Before trial, counsel for respondent made an oral motion forsubstitution of the presiding judge, Gordon L. Lustfeldt. Themotion was based upon the fact that Judge Lustfeldt was theelected State's Attorney of Iroquois County at the time therespondent pled guilty to the two cases of aggravated criminalsexual assault. 720 ILCS 5/12--14 (West 1992). The respondentalleged that he could not obtain a fair hearing before JudgeLustfeldt because of the natural prejudices and biases that flowfrom those prosecutions. The judge noted that the respondent hadpled guilty eight years earlier and that he had no recollectionof the cases and he did not handle the respondent's two cases. The judge noted that this situation did not require his automaticrecusal. Instead, he gave the respondent leave to file a motionfor substitution of judge in writing and scheduled it for ahearing in front of Judge Duane O'Connor. Judge O'Connor deniedthe motion and held that there was no actual evidence that JudgeLustfeldt was prejudiced or biased toward the respondent.

The respondent also filed a motion to exclude testimony. Specifically, he sought to exclude the testimony of Dr. PhilReidda. The respondent alleged that Dr. Reidda would testifythat he could predict that the respondent would commit acts ofsexual violence in the future. The respondent noted that Reiddabased his prediction on actuarial instruments which were designedto determine future behavior based upon past acts. Thatevidence, the respondent contended, did not meet the requirementsset out in Frye v. United States, 293 F.2d 1013 (D.C.Cir.1923). The trial judge treated the motion as a motion for a Fryehearing. He then denied the motion.

At trial, Dr. Reidda testified that he was a licensedclinical psychologist and an independent practitioner whocontracts with the Illinois Department of Human Services forevaluating individuals who may be committed. He diagnosed therespondent with pedophilia. With regard to the respondent's riskof re-offending, Dr. Reidda testified that he used certain risk-assessment instruments, called Static-99, and MNSOST-R. Hetestified that these tests showed that the respondent was at highrisk to re-offend. On cross-examination, Dr. Reidda admittedthat he deviated from the testing instructions with regard to therespondent. If he had followed the rules for this type oftesting, the respondent would have been in a medium to lowcategory for risk of re-offending. Using the instructions givenwith the test, the respondent would have scored a three on theStatic-99 test, which would mean his recidivism rate predictionwould be somewhere between 14 and 24 percent. Under the MNSOST-Rtest, his score of nine would have put him in a seven percentrange of re-offending.

Dr. Agnes Jones, a clinical psychologist with the Departmentof Corrections, testified that she had interviewed the respondentand found that he was a candidate for civil commitment. Thatconclusion was based upon three factors: (1) the two convictionsfor aggravated criminal sexual assaults with minor females (720ILCS 5/12--14 (West 1992)); (2) the respondent's failure tocomplete sex offender treatment; and (3) the opinions of otherpsychologists that he was not benefitting from treatment. Jonestestified that she used a method called Meta-Analysis by Hansonand Busierre to determine the respondent's risk for future sexualoffenses. She described the method as utilizing a large numberof studies involving sex offenders and recidivism and combiningthem in a statistical way that created factors used to determineoffender recidivism. Based upon the Meta-Analysis, she opinedthat there was a substantial possibility that the respondentwould commit another act of sexual violence.

The respondent presented no evidence. The jury returned averdict finding the respondent to be a sexually violent person.

At the dispositional hearing, Dr. Reidda testified that therespondent needed a secure, intensive sex offender clinicalservice, which only the Department of Human Services programcould provide. Dr. Robert Chapman, a psychiatrist, testified onbehalf of the respondent. Chapman said that although he believedthat the respondent met the criteria for civil commitment, heopined that the respondent was a suitable candidate for outpatient sexual offender treatment.

The trial court refused to order conditional release. Instead, it ordered the respondent to be committed to theDepartment of Human Services for institutional care in a securesetting.

On appeal, the respondent first argues that the trial judgecommitted reversible error by refusing to recuse himself when hewas the State's Attorney that prosecuted the underlying charges. In response, the State argues that Judge Lustfeldt was notmandated to recuse himself because: (1) he was not an attorney inthe "matter in controversy;" and (2) he never appeared on therecord regarding the respondent's plea of guilty in either of histwo criminal cases. In reply, the respondent argues that the"matter in controversy" in this case encompasses the two criminalprosecutions against the respondent, at which time JudgeLustfeldt was the State's Attorney. Further, the respondentnotes that Judge Lustfeldt did in fact personally appear onbehalf of the State in one of the cases.

A judge shall disqualify himself when his impartiality mightreasonably be questioned, including proceedings in which thejudge served as lawyer in the matter in controversy. 155 Ill. 2dR. 63 (C)(1)(b). The phrase "matter in controversy" means thecase currently pending before the court. People v. Vasquez, 307Ill. App. 3d 670, 718 N.E.2d 356 (1999). A post-convictionproceeding is sufficiently related to the original proceeding tofall within the scope of Supreme Court Rule 63(C)(1)(b). 155Ill. 2d R. 63(C)(1)(b). Vasquez, 307 Ill. app. 3d at 674, 718N.E.2d at 359.

The State contends that Judge Lustfeldt was not an attorneyin the "matter in controversy." It argues that the petition itfiled under the Act seeks civil commitment and has its own burdenof proof. See 725 ILCS 207/1 (West 2000). Therefore, the Stateclaims, this case is completely unrelated to the respondent'sunderlying criminal convictions.

We disagree. At the civil commitment hearing, Dr. Jonestestified that one of the factors that she used to conclude thatthe respondent was a candidate for civil commitment was his twoprior convictions for aggravated criminal sexual assault. 720ILCS 5/12--14 (West 1992). In fact, the State used thoseconvictions as a basis for its petition under the Act. 725 ILCS207/1 et seq. (West 2000). Like a post-conviction proceeding, wefind that a petition under the Act for civil commitment issufficiently related to the original prosecution that it fallswithin the scope of Rule 63 (C)(1)(b). 155 Ill. 2d R.63(C)(1)(b); People v. Vasquez, 307 Ill. App. 3d 670, 674, 718N.E.2d 356, 359 (1999). Therefore, if Judge Lustfeldt wasinvolved in one of the underlying criminal cases, he should haverecused himself.

The State then contends that the parties agree that JudgeLustfeldt never appeared on the record regarding the respondent'splea of guilty in his criminal cases. However, in his replybrief, the respondent notes that Judge Lustfeldt appeared onbehalf of the State on February 18, 1992, when the respondentappeared and withdrew his demand for a jury trial. We havereviewed the record and verified that information.

In cases where a trial judge was previously involved in thesame criminal proceeding over which the judge eventually presidedand in which the defendant was found guilty, our courts haveexamined the degree of involvement and found that when thejudge's activities were supervisory in nature, recusal was foundunnecessary. People v. Thomas, 199 Ill. App. 3d 79, 556 N.E.2d1246 (1990) (trial judge served as chief of criminal division ofState's Attorney's office and had supervisory authority overprosecution of defendant's case but had no actual involvement inthe prosecution of the case); People v. Burnett, 73 Ill. App. 3d750, 392 N.E.2d 235 (1979) (trial judge had been supervisor inState's Attorney's office when defendant's case was pending andbond forfeiture hearing had been held). These cases aredistinguishable from the instant case. Here, we are notconcerned with the fact that Judge Lustfeldt was the State'sAttorney of Iroquois County when the respondent was prosecutedfor the two cases. However, the fact that he appeared in courton behalf of the State during one of those prosecutions, even ona routine motion, is sufficient evidence of involvement torequire Judge Lustfeldt to recuse himself from these proceedings. Accordingly, the trial judge committed reversible error when hefailed to recuse himself from this case.

Next, the respondent argues that the trial court committedreversible error by refusing his motion for a Frye hearing toconsider the admissibility of Dr. Reidda's expert testimony. Specifically, he contends that Reidda's opinions were based ontesting instruments which were not generally accepted in thescientific community and did not meet the requirements of Frye v.United States, 293 F.2d 1013 (D.C.Cir.1923).

In determining whether an expert is qualified to render anopinion based on novel scientific evidence, Illinois courtsfollow the test set forth in Frye v. United States, 293 F.2d 1013(D.C.Cir.1923). The Frye standard, known as the "generalacceptance test," provides that scientific evidence is admissibleat trial only if the methodology or scientific principle uponwhich the opinion is based is "sufficiently established to havegained general acceptance in the particular field in which itbelongs." Donaldson v. Central Illinois Public Service Co., 199Ill. 2d 63, 77, 767 N.E.2d 314, 324 (2002). The proponent of theevidence bears the burden of demonstrating that the scientifictheory relied upon by the expert has gained general acceptance inthe scientific field. Donaldson, 199 Ill. 2d at 77, 767 N.E.2dat 324. A reviewing court will review the trial court'sadmission of expert testimony on an abuse of discretion basis. People v. Eyler, 133 Ill. 2d 173, 549 N.E.2d 268 (1989).

The Second District Appellate Court has recently reviewedthis issue in People v. Taylor, No. 2--01--0494 (December 30,2002). In Taylor, the jury found the respondent to be asexually violent person pursuant to the Act (725 ILCS 207/1 etseq. (West 2000)) after the trial court denied the respondent'smotion in limine seeking to bar expert testimony regarding theresults of actuarial instruments used to predict the likelihoodthat the respondent would reoffend. People v. Taylor, No. 2--01--0494 (December 30, 2002). On appeal, the court held thatpsychological or psychiatric testimony of an expert predicated onactuarial instruments is scientific evidence subject to a Fryeanalysis. People v. Taylor, No. 2--01--0494 (December 30, 2002). Like the instant case, the experts in Taylor utilized MNSOST-Rand Static-99 methods to help assess the respondent's risk toreoffend.

The Taylor court concluded that the MNSOST-R and Static-99tests constituted scientific evidence. Therefore, it held thatthe State must prove that these methodologies have gained generalacceptance in the psychological and psychiatric communities. Taylor, No. 2--01--0494 (December 30, 2002).

We are persuaded by the reasoning in Taylor. Here, theState was attempting to introduce scientific evidence regardingthe respondent's likelihood to reoffend. The respondent wastherefore entitled to a hearing to determine whether thatevidence had gained general acceptance in the psychological andpsychiatric community. The court abused its discretion when itdenied the respondent's motion for a Frye hearing. As theactuarial evidence played an important role in the State's case,we find that the admission of this evidence, without thesafeguards afforded by a Frye hearing, constituted reversibleerror.

Finally, the respondent argues that the trial court abusedits discretion when it entered a dispositional order committinghim to the Department of Human Services for institutional care ina secure setting. Our holding on the previous two issues rendersthis issue moot. Therefore, we will not address it.

The trial judge committed reversible error by refusing torecuse himself when he was an attorney in the "matter incontroversy" and he had appeared on behalf of the State in one ofthe respondent's underlying criminal proceedings. The trialcourt also committed error by denying the respondent's requestfor a Frye hearing.

The judgment of the circuit court of Iroquois County isreversed. This cause is remanded for further proceedings.

Reversed and remanded.

BARRY and LYTTON, J.J., concur.