State v. Midgett
In the Matter of Christopher James MIDGETT. State of North Dakota, Petitioner and Appellee v. Christopher James Midgett, Respondent and Appellant
Attorneys
Dale R. Rivard, Assistant State’s Attorney, and Derrick Roller (on brief), third-year law student, under the Rule on Limited Practice of Law by Law Students, Grand Forks, ND, for petitioner and ap-pellee., Troy R. Morley, Grand Forks, ND, for respondent and appellant.
Full Opinion (html_with_citations)
[¶ 1] Christopher Midgett appeals the district court’s March 21, 2007 order committing him to the custody of the Department of Human Services as a sexually dangerous individual. We conclude the Sixth Amendment confrontation right does not apply to commitment proceedings under N.D.C.C. ch. 25-03.3 and the district court’s application of N.D.C.C. ch. 25-03.3 is not erroneous. We affirm the district court’s order.
I
[¶ 2] In 1996, Midgett was adjudicated for sexual assault of a child. He was thirteen years old when the offense occurred. Midgett was placed with the Texas Youth Commission and remained in juvenile custody until he turned twenty-one. Midgett was convicted of failure to register as a sex offender on April 18, 2005. He received a one-year prison sentence with 275 days suspended for two years. One condition of Midgett’s probation was completion of sex offender treatment. On November 16, 2006, Midgett’s probation was revoked for failure to complete treatment.
[¶ 3] On November 1, 2006, the State petitioned for commitment of Midgett as a sexually dangerous individual under N.D.C.C. ch. 25-03.3. In addition to information about the 1996 sex offense, his failure to register, and his failure to complete sex offender treatment, the petition included references to three other instances of alleged sexually predatory conduct. On July 9, 2004, Midgett allegedly inappropriately touched a 10-year-old boy in a hotel pool. On February 12, 2005, Midgett was accused of “watching a little boy very intently” at a shopping mall. Midgett also allegedly entered the kitchen area of Northlands Rescue Mission without permission on December 28, 2005 and stared
[¶ 4] At the commitment hearing, three clinical psychologists testified as expert witnesses for the State. As part of their testimony regarding Midgett’s risk of recidivism, the doctors discussed the three alleged incidents. The doctors also discussed the results of several psychological evaluations indicating Midgett had a high probability of re-offending. The evaluations took into account the three alleged incidents. Midgett objected to the psychologists’ testimony because he was unable to confront the individuals who had reported and allegedly witnessed these events. The testimony was admitted despite Midgett’s protest. On cross-examination, the psychologists testified that absent consideration of these incidents, their opinions regarding the risk of Midgett re-offending may have been different. The doctors also indicated the results of the psychological evaluations may have shown Midgett was less likely to re-offend if the information about the alleged incidents had been excluded.
[¶ 5] The district court found by clear and convincing evidence Midgett met the statutory definition of a sexually dangerous individual because he (1) engaged in sexually predatory conduct and (2) suffers from a mental disorder making him likely to engage in further acts of sexually predatory conduct. Midgett argues he was denied his constitutional right of confrontation because the experts testifying at the commitment hearing based their opinions partially upon reports generated by individuals who were not available for cross-examination.
II
[¶ 6] Civil commitments of sexually dangerous individuals are reviewed under a “modified clearly erroneous” standard and will be affirmed unless the dis-
trict court’s “order is induced by an erroneous view of the law, or we are firmly convinced the order is not supported by clear and convincing evidence.” In re Anderson, 2007 ND 50, ¶21, 730 N.W.2d 570. Midgett’s single issue on appeal is whether he was improperly denied the opportunity to cross-examine the individuals who reported the three alleged incidents.
[¶ 7] Chapter 25-03.3, N.D.C.C., provides for commitment of sexually dangerous individuals. A sexually dangerous individual is a person who has
“engaged in sexually predatory conduct and who has a congenital or acquired condition that is manifested by a sexual disorder, a personality disorder, or other mental disorder or dysfunction that makes that individual likely to engage in further acts of sexually predatory conduct which constitute a danger to the physical or mental health or safety of others.”
N.D.C.C § 25-03.3-01(8). To commit someone under this chapter, the state’s attorney files a petition with the district court. N.D.C.C. § 25-03.3-03(1). The State chooses experts to psychologically evaluate the individual. N.D.C.C. § 25-03.3-12. The individual is able to provide his own experts, and in cases of indigent respondents, an expert is appointed by the court to testify on the individual’s behalf. Id. A commitment proceeding is subsequently held to determine whether the individual meets the definition of a sexually dangerous individual. N.D.C.C. § 25-03.3-13. The state’s attorney must prove by clear and convincing evidence the individual is sexually dangerous. Id. If the State is successful, the individual “must remain in the care, custody, and control of the executive director until, in the opinion of the executive director, the individual is safe to be at large.” N.D.C.C. § 25-03.3-17.
[¶ 9] This Court has determined the Sixth Amendment does not apply to civil cases. Adoption of J.S.P.L., 532 N.W.2d 653, 660 (N.D.1995). “The legislature has clearly expressed its intent to create a civil, rather than criminal, procedure in N.D.C.C. ch. 25-03.3.” In re M.D., 1999 ND 160, ¶ 27, 598 N.W.2d 799. The respondent in M.D. argued the double jeopardy protections applied to criminal cases should also apply to civil commitment of sexually dangerous individuals. Id. at ¶ 24. This Court determined civil commitment is not intended to be punitive; its primary purpose is to protect the public from harm. Id. at ¶¶ 26, 28. Because the commitment procedure is not a criminal sanction, constitutional protections associated with criminal proceedings do not apply. Id. at ¶ 31.
[¶ 10] The Legislature may choose to extend similar protections to civil cases by statute. Interest of B.B., 2007 ND 115, ¶ 15, 735 N.W.2d 855. See, e.g., N.D.C.C. § 25-03.3-09 (right to counsel). In commitment proceedings of sexually dangerous individuals, the Legislature has afforded respondents the “right to be present, to testify, and to present and cross-examine witnesses.” N.D.C.C. § 25-03.3-13. This right, however, is not the same right to confrontation granted criminal defendants by the United States Constitution.
[¶ 11] While the Legislature has granted respondents the right of cross-examination at the hearing, it also provides: “At the commitment proceeding, any testimony and reports of an expert who conducted an examination are admissible.” N.D.C.C. § 25-03.3-13. Admissibility of evidence under N.D.C.C. § 25-03.3-15 is similarly permissive: “Notwithstanding any other provision of law, in any proceeding pursuant to this chapter, evidence of prior sexually predatory conduct or criminal conduct, including a record of the juvenile court, is admissible.”
[¶ 12] This Court must “harmonize statutes to avoid conflicts between them.” Stephenson v. Hoeven, 2007 ND 136, ¶ 14, 737 N.W.2d 260. We have held expert witnesses in commitment proceedings may base their opinions on any information “reasonably relied upon by psychologists in determining whether an individual is sexually dangerous.” Interest of D.V.A., 2004 ND 57, ¶9, 676 N.W.2d 776. In D.V.A, the psychologist relied on penitentiary records, medical records, conversations with another psychologist, and four interviews with the respondent to form her opinion. Id. at ¶ 5. Because the respondent did not show this evidence was unreasonably relied on, the expert’s testimony was admissible. Id. at ¶ 9. Any “weakness or non-existence of a basis for an expert’s opinion goes to his credibility, and not necessarily to the admissibility of the opinion evidence.” Id. This approach is consistent with N.D.R.Ev. 703, which states:
“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.”
Ill
[¶ 14] We conclude the Sixth Amendment confrontation right does not apply to civil commitments of sexually dangerous individuals and the district court did not erroneously apply N.D.C.C. ch. 25-03.3. We affirm the district court’s order committing Midgett to the custody of the Department of Human Services as a sexually dangerous individual.