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In re Civil Commitment of Gomez

Supreme Court of North Dakota

January 22, 2018

In the Matter of the Civil Commitment of Joshua John Gomez Julie A. Lawyer, Assistant State's Attorney, Petitioner and Appellee
v.
Joshua John Gomez, Respondent and Appellant

         Appeal from the District Court of Burleigh County, South Central Judicial District, the Honorable Sonna M. Anderson, Judge.

          Julie A. Lawyer, Burleigh County Assistant State's Attorney, Bismarck, ND, for petitioner and appellee.

          Tyler J. Morrow, Grand Forks, ND, for respondent and appellant.

          OPINION

          JENSEN, JUSTICE.

         [¶ 1] Joshua Gomez appeals from an order of civil commitment after the district court determined he is a sexually dangerous individual ("SDI"). Gomez argues the district court erred in allowing the State to call as a witness an expert appointed on his behalf. We affirm the district court's order.

         I

         [¶ 2] On July 13, 2015, the State petitioned for Gomez's commitment as a SDI. On July 16, 2015, the district court ordered an evaluation to be completed at the North Dakota State Hospital ("State Hospital"). Gomez requested an independent examination. After confirming Gomez was indigent, the district court appointed Dr. Stacey Benson as an independent examiner on Gomez's behalf. In December 2016, the district court held a treatment hearing and heard testimony from Dr. Benson, the court-ordered evaluator from the State Hospital, two evaluators privately retained by Gomez, and Gomez.

         [¶ 3] As part of the discovery process, the State served Gomez with a request for production of documents including a demand that he produce "[a]ny and all reports and tests used by any independent examiner." Gomez responded to this request by providing copies of evaluation reports prepared by the two evaluators that had been privately retained by Gomez. No other form of response was provided. In particular, Gomez did not produce a copy of the report prepared by Dr. Benson, did not disclose any information regarding Dr. Benson, and did not assert any objection to the discovery request.

         [¶ 4] Prior to the hearing, several examination reports were filed with the district court. The State filed the report of the evaluator who completed the examination pursuant to the district court's order for an examination at the State Hospital. Gomez filed the reports of his privately retained evaluators. Gomez did not file the report of the independent examiner appointed on his behalf, Dr. Benson.

         [¶ 5] The State subsequently sought an order for the release of Dr. Benson's report. The district court ordered Dr. Benson to release copies of her report to the district court, the State, and Gomez. Dr. Benson's report of evaluation was filed with the district court by the State.

         [¶ 6] At the hearing, the State called Dr. Benson as a witness. Gomez objected, arguing Dr. Benson was retained only for the purpose of trial preparation. Gomez asserted the State was prohibited from calling Dr. Benson as a witness pursuant to N.D.R.Civ.P. 26(b)(4)(B), which limits the scope of discovery for experts retained for the purpose of trial preparation and who are not intended to be called as a witness. Gomez supported his argument by noting Dr. Benson was appointed pursuant to N.D.C.C. § 25-03.3-12, which Gomez contends provided him with the option to either call or not call an independent examiner as a witness. Dr. Benson also refused to testify without consent from Gomez or a court order, asserting she was precluded from revealing confidential information regarding Gomez. The district court ordered Dr. Benson to testify after concluding N.D.C.C. § 25-03.3-13 provides for the admissibility of any testimony or reports of an expert.

         [¶ 7] Dr. Benson offered a diagnosis of antisocial personality disorder and noted Gomez was rated at a high risk of reoffending. The court-ordered evaluator from the State Hospital testified she arrived at a diagnosis of antisocial personality disorder as well. The court-ordered evaluator from the State Hospital also testified she understood some of Gomez's history differently than Dr. Benson, but arrived at the same conclusion that Gomez was at a high risk of reoffending. One of Gomez's privately retained evaluators also diagnosed Gomez with antisocial personality disorder, mild stimulant cocaine use disorder, and mild cannabis use disorder. During the hearing, that same evaluator determined Gomez omitted some information during his examination regarding prior criminal offenses and amount of sexual partners, which would have changed parts of his opinion about Gomez's likelihood to reoffend. Gomez's second evaluator testified he believed the State failed to meet its burden, and he did not believe Gomez should have been diagnosed with antisocial personality disorder.

         [¶ 8] On March 29, 2017, the district court entered an order for commitment after it determined Gomez is a SDI. The parties stipulated Gomez engaged in sexually predatory conduct, and the district court determined the State met its burden on the other required elements. Accordingly, the district court ordered Gomez into the custody ...


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