In re Anderson

• Decision Date: 10 April 2007
• Docket Number: No. 20060088.,20060088.
• Citation: 2007 ND 50,730 N.W.2d 570
• Parties: In the Matter of Jamal Joel ANDERSON. State of North Dakota, Petitioner and Appellee, v. Jamal Joel Anderson, Respondent and Appellant.
• Court: North Dakota Supreme Court

730 N.W.2d 570

2007 ND 50

In the Matter of Jamal Joel ANDERSON State of North Dakota, Petitioner and Appellee, v. Jamal Joel Anderson, Respondent and Appellant.

No. 20060088.

Supreme Court of North Dakota.

April 10, 2007.

Fritz R. Fremgen, State's Attorney, Jamestown, N.D., for petitioner and appellee.

Thomas E. Merrick, Jamestown, N.D., for respondent and appellant.

Robert P. Bennett, Assistant Attorney General, Office of Attorney General, Bismarck, N.D., amicus curiae, submitted on brief.

SANDSTROM, Justice.

[¶ 1] Jamal Anderson appeals from a district court judgment ordering his involuntary commitment to the care and custody of the executive director of the Department of Human Services as a sexually dangerous individual. Concluding that good cause existed for delaying the commitment hearing, that no right to a jury trial exists in these proceedings, and that clear and convincing evidence exists to prove Anderson is a sexually dangerous individual, we affirm.

I

[¶ 2] On September 21, 2005, while Anderson was in the North Dakota State Penitentiary and about to complete his five-year sentence for drug-related convictions, the State petitioned for his commitment as a sexually dangerous individual. Anderson's anticipated release date from prison was October 23, 2005.

[¶ 3] In 1998, Anderson was charged with gross sexual imposition; however, he was convicted of sexual assault as the result of a plea agreement. This charge resulted from Anderson, then 17 years old, having "at least offensive sexual contact with a female who was 15 years old at the time, if not sexual intercourse accomplished by threat or force." In 2000, Anderson was convicted of corrupting a minor for having sex with a 16-year-old female when he was 20 years old.

[¶ 4] On October 4, 2005, the district court found probable cause for the commitment of Anderson as a sexually dangerous individual and ordered a psychological evaluation of him. The district court scheduled the commitment hearing for November 7, 2005. On November 3, 2005, the State moved for a continuance because of "case load at the particular unit conducting these examinations . . . . Petitioner requests the commitment proceeding be rescheduled to a date after the 2nd of December 2005." The district court continued the commitment hearing to December 21, 2005.

[¶ 5] On December 6, 2005, Anderson moved to dismiss the commitment petition. He contended that the 60-day statutory period that begins after the finding of probable cause had run. The district court denied his motion. Psychologists at the North Dakota State Hospital submitted their evaluations on December 19, 2005. On December 20, 2005, Anderson moved for a continuance to obtain an independent evaluation and prepare for the commitment hearing. The district court granted the motion for the continuance and rescheduled the commitment hearing to February 8, 2006. Anderson hired Dr. Robert Gulkin, a clinical psychologist, to conduct the independent evaluation. He filed his report on January 31, 2006. At the close of the commitment hearing, the district court found Anderson to be a sexually dangerous individual and committed him to the care and custody of the executive director of the Department of Human Services. There he would receive inpatient sex offender treatment for an indefinite term. Anderson appeals.

[¶ 6] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 25-03.3-02. Anderson's appeal is timely under N.D.C.C. § 25-03.3-19. This Court has jurisdiction under N.D. Const. art. VI, §§ 2 and 6, and N.D.C.C. § 25-03.3-19.

II

[¶ 7] Anderson argues that the State's petition for commitment should have been dismissed for an excessive delay between the finding of probable cause and the commitment hearing.

[¶ 8] Section 25-03.3-13, N.D.C.C., provides, in part: "Within sixty days after the finding of probable cause, the court shall conduct a commitment proceeding to determine whether the respondent is a sexually dangerous individual. The court may extend the time for good cause."

[¶ 9] About a month after the district court found probable cause for Anderson's commitment, the State notified Anderson's former counsel by e-mail that a continuance would be required because the State Hospital could not complete the psychiatric evaluation in time for the commitment hearing. Anderson's former counsel replied that he would not oppose the motion. On November 3, 2005, the State filed a request for a continuance on that ground. On November 4, 2005, the district court granted the motion and rescheduled the date of the commitment hearing to December 21, 2005-78 days after the finding of probable cause, or 18 days beyond the statutory deadline, without objection from Anderson at that time. On December 6, 2005, Anderson's counsel moved to dismiss the commitment petition, claiming that Anderson had been incarcerated for over 60 days in violation of section 25-03.3-13, N.D.C.C. In response to his motion to dismiss, the State presented an affidavit from the State Hospital regarding its plan for evaluating Anderson:

Dr. Joseph Belanger has completed three interviews with Jamal this week (5-9 December 2005), and plans to complete the [fourth interview] on the 9th of December 2005.

Dr. Rosalie Etherington's interviews of Mr. Anderson are planned for this coming week (12-16 December 2005).

It is anticipated that the report for Mr. Jamal Anderson's review will be completed and delivered to the parties and filed with the Court by Friday the 16th of December 2005.

Prior to the doctors interviewing Mr. Anderson, Dr. Etherington and support staff constructed a database of the documents. That database was reviewed by the doctors to prepare for their interviews of Mr. Jamal Anderson. Along with that, extensive review of the past history documents has been completed by both Dr. Etherington and Dr. Belanger. Dr. Belanger has further independently competed a second supplementary database after independent review of the document set.

The district court denied Anderson's motion for dismissal, finding that "[r]easonable attempts have been made by the State to secure an evaluation."

[¶ 10] After receiving the two State Hospital evaluations on December 19, 2005, Anderson found them to be "not advantageous" to him, and he moved for a continuance to obtain an independent evaluation. In his motion, Anderson stated that he "now has the opportunity to have an independent evaluation"; however, Anderson could have requested such an evaluation as early as September 2005, when the State petitioned for his commitment and notified him of his rights in these proceedings. By waiting until December 20, 2005—the day before the commitment hearing—to request an independent evaluation, Anderson added another 57 days to his detention. The commitment hearing was held on February 8 and 15, 2006.

[¶ 11] "The evaluation was completed and the case was ready to proceed to a hearing within the first extension when [Anderson] requested an independent evaluation and concomitant extension of time. The court granted [Anderson]'s request. [Anderson] cannot now complain about the delay occasioned by his own request for an independent evaluation." See In re M.D., 1999 ND 160, ¶¶ 17, 18, 598 N.W.2d 799 (allowing a six-month delay between the finding of probable cause and the commitment hearing). Absent Anderson's motion for a continuance to obtain an independent evaluation, the commitment hearing would have been delayed only 18 days beyond the statutory deadline. Like M.D., Anderson caused the bulk of the delay. Furthermore, by not opposing the State's motion for a continuance, Anderson's former counsel essentially eliminated the need for a hearing on the matter of good cause for the extension. Nonetheless, the district court issued a ruling that followed our line of cases delimiting the boundaries of such extensions.

[¶ 12] The district court did not err in finding good cause for the extension.

III

[¶ 13] Anderson argues, for the first time on appeal, that he was denied his right to a trial by jury. Anderson asks for reversal of the judgment of commitment as a matter of law.

[¶ 14] "Any party may demand a trial by jury of any issue triable of right by jury . . . ." N.D.R.Civ.P. 38(b) (emphasis added). "The failure of a party to serve and file a demand as required by this rule constitutes a waiver by the party of trial by jury." N.D.R.Civ.P. 38(e). "[N]otwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by a jury of any or all issues." N.D.R.Civ.P. 39(b) (emphasis added). "Of course, the opposite is true with regard to waiver of the right to a jury trial in criminal proceedings; we never imply waiver in a criminal case." First Western Bank of Minot v. Wickman, 500 N.W.2d 896, 898 n. 4 (N.D.1993) ("Under Rule 23, N.D.R.Crim.P., a defendant is guaranteed a jury trial without saying a word. The right is so important in a criminal context that the defendant need not demand it.").

[¶ 15] "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. For the civil commitment proceedings under this chapter, the legislature specifically excluded the right to a jury trial. See N.D.C.C. § 25-03.3-13 ("Any proceeding pursuant to this chapter must be tried to the court and not a jury.").

[¶ 16] Article I, section 13, of the Constitution of the State of North Dakota provides:

The right of trial by jury shall be secured to all, and remain inviolate. A person accused of a crime for which he may be confined for a period of more than one year has the right of trial by a jury of twelve. The legislative assembly may determine the size of the jury for all other cases, provided that the jury consists of at least six members....