of my name is michael johnson and i represent the appellant in this matter just in fields i'm appearing under supreme court rule seven eleven i've asked for twelve minutes on the initial argument and three minutes in rebuttal tell me your name himself michael johnson  and ordered to a secure facility indefinitely he should have received a fair trial and he should have received a dispositional hearing but he received neither one of those things in our briefs we raise four issues and today i'd like to focus on two of them the first issue is that mr fields was denied his statutory right to a dispositional hearing and the second is that mr fields was denied his right to a fair trial where the state made improper closing argument turning to my first point the state agrees that a hearing is required under section forty b of the civil of the sexually violent persons commitment act but contrary to the state no hearing took place here it was clear after asked for clarification saying do you mean as opposed to a dispositional hearing and the state said yes the combination of the state's concession here in section four of their brief that a hearing is required combined with the third district case and the appellate court held that a dispositional hearing is required and additionally the state has agreed in their brief that a hearing is required section forty b says that the court shall enter into a commitment order immediately after they did not hold the most formal hearing but they did give the respondent an opportunity to present evidence which he declined and they gave respondents counsel and opportunities argue whether the responder was properly place conditional release or secure care both of those opportunities were denied to appellant fields in this case and the feet in the fields case he specifically made a request to produce additional evidence in this case yes mr field specifically requested to put on a witness at a dispositional hearing and the trial court said that's good we have a dispositional hearing but essentially i'm not going to have one with with the witnesses they have with this new hearing that they know the witness was not there the only thing the court never heard argument on that issue the court did not hear any evidence related to the third factor that the court was required to consider under section forty two which is what arrangements are available to ensure th respondent has access to and will participate in treatment none of that evidence was admitted at trial because that evidence would have been irrelevant to the question of whether mr fields was a sexually violent person furthermore introducing evidence related to an appropriate disposition would have been far more prejudicial than it would be probative because it would essentially be introducing evidence that mr fields was a sexually violent person because in order to get conditional my understanding is that the court heard testimony related to those factors about where the respondent will live how he will support himself and what arrangements were necessary to ensure that he has access to not participate in treatment that evidence was introduced at trial apparently without objection and so the court did hear that evidence in that case however that's not the case here because that evidence was not admitted furthermore under section twenty five b the court must give notice to the respondent of any hearing conducted under the specially bound person's commitment and there was no notice given here respond it was taken by surprise that there  that the state would be asking for a dispositional hearing immediately following the trial and respondent was prejudiced by this by the state's request to have an immediate dispositional hearing responded by being for close from cross examining the state's experts on the issue of disposition has lost the opportunity to discover what expectations in treatment were necessary for him to get conditional release or discharge at a later date now at trial respondent had no motive to cross examine the state witnesses as to the appropriate disposition in this case that would have been an appropriate issue for dispositional hearing butts and since response counsel was denied the opportunity to cross examine these doctors as it relates to disposition he has lost the opportunity to structure his treatment to ensure that he can get conditional release or discharge at a later date turning to my second point that mr fields  and order a predisposition all investigation so are in our position on the statute is that it does require a hearing and that only in the case that the court lacks sufficient information would it adjourn the hearing  which is precisely what were alleging is the situation here because the court heard no testimony related to response proper placement on conditional release or discharge which would be the most critical factor in deciding what his most appropriate place for his where what treatment is available in the community what treatment is available in the secure facility and turning to my second point the respondent was denied a fair trial where the state made improper closing arguments and this really has three sub issues to it the first is that the state made improper references to mr fields custodial status the second is th state made improper use of wilson versus clarke testimony and the third is that the state improperly shifted the burden of proof to responded to show that he was not a sexually violent person on the first issue part holding that the state would be free to bring out evidence related to reteam questions such as where the interview took place or how disciplinary tickets came to be but during closing arguments the state improperly referenced this by referencing the length of mr field's detention since two thousand and seven he has been in the department of human services facility specifically focusing on sex offender treatment and he has refused to participate in treatment these comments were calculated to imply that mr fields wasn't s v p because he has been living with his s b p's since two thousand and seven the second point is that the rest of the state improperly use wilson versus clarke evidence in their closing arguments the state spent the first nine minutes of their closing arguments were citing respondents past convictions and the details of those convictions and after this was objected to the state went on to say that even without an expert opinion anyone can say that there's something wrong here the state specifically urged the jury to consider that information without an expert opinion which is exactly what is forbidden under wilson versus clarke that testimony was only admitted to explain the basis of the expert's opinion finally this in referencing respondents refusal to participate in treatment where the respondent had no obligation to undergo treatment the state affectively eroded and shifted the burden of proof on to respond to the legislature the general assembly has sought to commit sexually violent persons through a fair and just process that requires a dispositional hearing following trial and a fair trial the courts upheld in the past that a fair trial involving expert testimony must involve this limited purpose evidence that the basis of opinion must only be used for that explaining the purpose explaining the expert's opinion that evidence should not have been admitted for its truth and should not have been argued for its truth and these necessary safeguards to protecting respondents rights in this case were not followed  after the state fish were citing his past crimes and said that he had twenty five probation violations or twenty five violations the respondent objected there the respondent also objected to the reference to the remarks if context to the properly objected to statements and that's what people versus wheeler illinois supreme court case held that even if a statement is not objected to it may be considered as giving context to the properly objective me please the court assistant attorney general lindsay payne on behalf of the people i like to begin by addressing the disposition dispositional hearing issue and something that you're honest keyed in on and it's important to recognize that there's two separate issues that are presented by the statutory scheme one is their right to a hearing and two is their right to a continuance of that hearing now the statute clearly answers both of those questions as respondent stated the state has conceded that the statute does say that a dispositional hearing is to take place but section forty one of the act also sets the default time for that hearing to take place immediately following trial as to the second issue a right to a continuance section forty one also states that it's only if the court lacks sufficient information to reach its dispositional ruling that a continuance should be granted here just like who's one of the parties not need to hear additional evidence in this case all three of the statutory factors that are relevant to disposition were addressed the three factors are the nature and circumstances of the respondents behavior that formed the basis of the petition the person's mental history and current mental state and what arrangements are available to ensure that they have access to and will participate in treatment of the experts testify to all three of the these issues and on top of that if respondent wanted to present additional evidence at a continued hearing it was incumbent upon respondent to make that record if we know it goes to the criminal context a criminal defendant seeking a continuance of his trial to present a witness has to make a any s to demonstrate through that proffer that the witness's testimony would be material and that he would be prejudiced by a denial of the motion for continuance here it was only after the trial court ruled that it wasn't going to continue the hearing that respondents counsel said i have a witness that i would like to present at a hearing he did not say who this witness would be he did not say how their testimony would be relevant and material to the dispositional ruling again at  briefing there was no indication of who this witness was or what they would say respondents counsel concedes that risk the witness was not there at the default time for the hearing to take place and therefore we have a co record and we can't say that the trial court abused its discretion into nine the continuance because we don't know what that witness would say and it is within the trial court's discretion to deny the continuance if it has sufficient information here it did and i would disagree with counsel statement that he was denied the opportunity to cross examine the state's witnesses on dispositional issues to the contrary the nature and circumstances of the behavior was relevant at trial the experts testified to it because they testified that they relied upon respondents criminal background to diagnose him with pedophilia and diagnosed him with antisocial personality disorder and to  is demonstrated continuing lack of ability to control his impulses both sexual and non sexual as to his mental history and present mental condition again they testified about their diagnoses they testified that even throughout the course of the leading up to the trial he had acted out in th us custody he had been producing in disseminating child pornography in the t h s facility that was all brought out at trial that was all relevant to disposition under the statute and respond to have the opportunity to cross examine on the third point which he says no evidence was presented which is the arrangements available to ensure that respondent will have access to and w participate in treatment again each expert testified that despite residing in a d h s facility respondent had refused to participate in treatment that's relevant to the dispositional ruling that came out and if they had cross examination that would have been appropriate for the trial so again responding is incorrect the court lacks sufficient information to make its dispositional ruling and we would ask that the court affirm the judgment below if you have no further questions on that receipt yes turning to respondents second argument regarding closing argument as the court noted there were only two objections that were made during closing argument that was to the statements that respondent had committed twenty five probation violations and that despite residing in a residential treatment facility he had not participated in treatment both of those statements were made as an explanation of the experts opinions in the case the experts relied upon the twenty five probation violations to diagnose respondent with anti social personality disorder and to conclude that respondent had demonstrated a lack of ability to control his impulses they relied upon his refusal to participate in treatment despite residing in a residential facility to conclude that there are new mitigating factors that apply to their risk assessments of response and in this case moreover they relied upon his custodial status to determine that he to show a lack of impulse control in that he has been assaulting other residents of the da just facility and that he has again produced and disseminated child pornography in the facility if we s back and put these statements in context you know the people open their closing argument by saying the experts in this case told you their opinions they diagnosed respondent with mental disorder and they told you that that mental disorder makes them substantially probable to commit future acts of sexual violence so they then go to people then say to the jury and the experts told you what they relied upon in reaching that conclusion so the entire closing argument was framed by saying here's what the experts relied upon on top of that the jury was instructed numerous times as to the proper treatment of basis of opinion testimony immediately prior to both dr levitt and dr gaskell in the case the jury was instructed that the facts and circumstances of respondents criminal history is not substantive evidence it should not be treated as such it's only relevant to determining what way if any you accord the doctor's opinion sin this case the jury was again instructed as to that following close in arguments they were again instructed in writing and they were instructed the closing arguments are not in fact i've been in the case so there's little reason to believe that any prejudice arose from these statements we don't have any reason believe that the jury disregarded these instructions and they simply weren't error i finally like to address the argument the people told the jury that they can consider the facts and circumstances of respondents crimes without considering the experts pinions in this case is the court noted that our human is forfeited and it also simply is not error or prejudicial under the clean air standard immediately after the statement that respondent complaints out the prosecutor said but the evidence you had in this case was to expert opinions to to tell you exactly what that not normal thing going on was so wouldn't read in context what the prosecutor actually told the jury was the evidence in this case is the expert opinions it's it's not the underlying facts of respondents cries they directed the jury towards a proper consideration of the evidence and again the jury was instructed numerous times on the proper consideration of this evidence they're for there is not a or there's not clean air there's no prejudice to respondent in this case and if there's no further questions we would ask the court to affirm the judgment below thank you must thank i have three points in rebuttal the first is that section forty b while requiring a hearing immediately following trial is in contention with section twenty five b which requires notice to be given to the respondent of any hearing that is conducted under the sexually violent persons act furthermore although the state's characterization of this is that the trial court adjourned the hearing or refused to adjourn the hearing in response to respond request she would join the hearing that is not what the record reflects the record reflects that the respondent requested a hearing and that the trial court said that's if we have a hearing i'm going to make that decision now without a hearing case when that when responder had an expert witness appointed to represent him that information appears on page c forty seven of the common law record and secondly the trial court did not think that it was holding a dispositional here child court thought that it he the information related to section forty two the third factor because none of that was admitted at trial and this brings me to my second point that respondent did not have a motive to cross examine the experts witnesses as to disposition despite the state telling you that these two issues his current mental status and his past havior were certainly relevant at trial as it relates to him being a sexually violent person the motive to cross examine at trial was related to disproving art sorry to show tending to show that the state had failed to prove these elements beyond a reasonable doubt in the context of cross examination of a dispositional hearing the motive would have been to show response would have access and availability the treatment unconditional release and as to what level of dangerousness that those elements would tend to be unconditional  in my final point is that although the state started its argument by noting that this is that the experts relied on a number of information including the details of his crimes the in describing those crimes the state went on to make no reference to the limited purpose of that evidence and in fact concluded its recitation of those crimes by urging the jury to rely on that information without an expert opinion and then to use the expert opinion to solidify their already they're at their determination as to that there must be something wrong here based on these facts people versus wheeler the supreme court said that a limited struction will not cure everywhere and that's precisely the case here where the state specifically urged the jury not to follow the instruction and furthermore the first district a public court has helping draw the by draw the versus community consolidated school district number sixty two that a limiting instruction in the case of describing details of sexual abuse and sexual misconduct is not