Nesvig v. Hoff, 20120248.

830 N.W.2d 608

2013 ND 68

In the Interest of Robert R. HOFF.Pamela A. Nesvig, Assistant State's Attorney, Petitioner and Appellee

v.Robert R. Hoff, Respondent and Appellant.

No. 20120248.

Supreme Court of North Dakota.

May 14, 2013.

Pamela A. Nesvig, Assistant State's Attorney, Bismarck, ND, petitioner and appellee; submitted on brief.

Gregory I. Runge, Bismarck, ND, for respondent and appellant; submitted on brief.

KAPSNER, Justice.

[¶ 1] Robert R. Hoff appeals from an order denying his petition for discharge from civil commitment as a sexually dangerous individual. We hold the district court abused its discretion by not independently making an individualized determination on the record whether it was necessary to restrain Hoff during the hearing, and its failure to do so was not harmless error. We reverse and remand.

I

[¶ 2] Hoff, who is currently 38 years old, has been in trouble with the law for much of his life. In 1990, when he was 16 years old, Hoff was charged with gross sexual imposition resulting from an incident involving a 10–year–old girl, and he was sent to Home on the Range. The record contains evidence of other sex crimes where the victims declined to press charges. Hoff has also been convicted of four counts of delivering alcohol to minors and criminal trespass stemming from incidents involving an ex-girlfriend. In 2004, Hoff was convicted of gross sexual imposition, and he was given a suspended sentence and placed on probation. Hoff's probation was later revoked after he violated several conditions of probation, including that he not have unsupervised contact with minors. Hoff has been committed to the North Dakota State Hospital in Jamestown as a sexually dangerous individual since 2006.

[¶ 3] In September 2011, Hoff petitioned for discharge from civil commitment, and a hearing on the petition was held in Bismarck in March 2012. Hoff arrived in the courtroom wearing restraints consisting of handcuffs tethered to his waist and an ankle chain. At the beginning of the hearing, Hoff's attorney made a request to the district court:

MR. RUNGE: I have one request of the Court, that is that my client have the shackles, the handcuffs, removed so he can participate in his defense.

THE COURT: Well, is there a reason?

MR. RUNGE: Yeah. He can't write.

THE COURT: What do you mean he can't write?

MR. RUNGE: He's—

THE COURT: I see what he's got, but the problem is the sheriff makes the determination whether or not they can be secured while they're here. I don't have a deputy.

MR. RUNGE: This is denial of his due process if he cannot communicate with his attorney. And oral communication does not suffice when I have to listen to—

THE COURT: Let's get one thing straight. I'm not going to have him asking questions.

MR. RUNGE: He's not going to.

THE COURT: I understand, but it won't be—not the first time just because somebody writes a question he gets asked.

MR. RUNGE: No, he's going to be writing comments on paper for me to possibly look at.

THE COURT: Well, I understand. Sue, I don't know if you—

DETENTION OFFICER: Not my call, Your Honor. The sheriff said no. They have to stay on.

THE COURT: Okay. Then until—what I'm going to say is no, Mr. Runge.

MR. RUNGE: I'm going to object.

THE COURT: Beforehand—you can object, that's fine.

MR. RUNGE: I would like to have a reason for the denial.

THE COURT: Well, number one, he's in custody. He's been transported 90 miles to here. I rely on them to determine to tell me whether or not he may be a danger. Sheriff's indicated he needs to remain in cuffs.

MR. RUNGE: But there is no indication that he's a danger. Nobody said he's a danger.

THE COURT: Nobody said he's a danger. Well, he has been convicted of two felonies, minimum. That's what got him here to begin with.

MR. RUNGE: This is a civil case.

THE COURT: It is a civil case, but he stays in custody. He gets transported. He doesn't get released to walk around. He's in custody even though it's a civil case. I'm going to deny it.

MR. RUNGE: In any criminal case, even in murder cases the client is not—

THE COURT: If I have a jury sitting there. I know where Mr. Hoff is. I know that he's incarcerated and I'm the guy that makes the decision in this case. So if for some reason he can't—if you have a pen, you have a pad, he should be able to write on his lap if he needs to put some things on there.

MR. RUNGE: Your Honor, as far as I can see, he can't do that.

THE COURT: Well, I haven't seen you give him a pen or give him a pad of paper.

MR. RUNGE: I'm going to do that right now.

THE COURT: All right. Looks like he will be able to function, so we'll go along. All right. Anything else, Mr. Runge?

MR. RUNGE: Nothing further, Your Honor.

[¶ 4] Two witnesses testified at the hearing. Robert Riedel, Ph.D., testified on Hoff's behalf, and Robert Lisota, Ph.D., testified on the State's behalf. Written expert evaluations of Hoff by the witnesses were also submitted in evidence. Following the hearing, the district court found Hoff continued to be a sexually dangerous individual and denied the petition for discharge:

Hoff was civilly committed by Court order on January 11, 2006, under 25–03.3 NDCC. Hoff has previously waived discharge hearings. Hoff did request and have a discharge hearing in 2009 and the Court issued an Order for Continued Treatment. Dr. Riedel was the independent examiner in 2009 and [opined] then as he does now that Hoff does not meet the criteria for SDI [sexually dangerous individual]. Dr. Riedel finds Hoff only meets one of the criteria required for SDI. This is the same diagnosis Dr. Riedel presented to the Court in 2009 and Hoff was found by the Court to continue to be a sexually dangerous individual.

At the time of Hoff's commitment in 2006, he was diagnosed with antisocial personality disorder, with a high degree of psychopathy, which provided a basis to believe Hoff would likely engage in future acts of sexual predatory conduct and would likely experience serious difficulty controlling his behavior. Dr. Lisota's diagnosis presently mirrors the findings in 2006 and in 2009. Hoff up until the present time has failed to actively and successfully participate in sex offender treatment programs, which could, if successfully completed, allow the respondent to be placed in a less restrictive setting. Hoff is presently participating in the treatment program offered. This is a change from Hoff's previous lack of participation as he had previously not participated in treatment. Dr. Lisota testified Hoff is in treatment, but cautioned Hoff is at the same point of his treatment now as when this current review period began. Dr. Lisota also stated Hoff has had 17 behavior warnings, which creates problems with his ability to successfully move forward in his treatment. Hoff has not completed treatment and has not progressed in his treatment beyond the initial stage.

From the evidence presented at the hearing of this matter and the reports filed with the Court, the Court finds the following:

1) Hoff's diagnosis of antisocial personality disorder, with a high degree of psychopathy providing a continued basis to believe Hoff is likely to engage in further acts of sexual predatory conduct remains and Hoff has failed to successfully complete a sex offender treatment program.

2) Up until the start of this most recent review period, Hoff has refused to actively and successfully participate in a sex offender treatment, which might if successfully completed, allow Hoff to be placed in a less restrictive setting.

3) Hoff is now participating in sex offender treatment, but has not progressed beyond the initial treatment due to his inability to follow the behavioral rules.

4) Dr. R[ie]del's position is the same position he provided to the Court in 2009. Basically, Dr. R[ie]del argues Hoff does not qualify and has never qualified as an SDI under 25–03.3 NDCC. Dr. R[ie]del's report was not persuasive in 2009 and this Court finds Dr. R[ie]del's current report unpersuasive.

5) The Court finds by clear and convincing evidence Hoff continues to be a sexually dangerous individual under the provisions of Chapter 25–03.3, NDCC.

II

[¶ 5] Hoff argues the district court erred in refusing to allow removal of his restraints during the petition for discharge hearing. Hoff contends this resulted in a violation of his due process rights “by denying him the opportunity in assisting his attorney in his own defense.”

[¶ 6] “We review a district court's decision whether to use physical restraints during court proceedings for an abuse of discretion.” State v. Aguero, 2010 ND 210, ¶ 8, 791 N.W.2d 1 (citing State v. Kunze, 2007 ND 143, ¶ 14, 738 N.W.2d 472). “A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination.” Aguero, at ¶ 8 (citing Kunze, at ¶ 14).

[¶ 7] In Deck v. Missouri, 544 U.S. 622, 624, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), the United States Supreme Court held that due process prohibits the use of visible shackles on a convicted offender during the penalty phase of a capital case unless the use is justified by an “essential state interest” that is “specific to the defendant on trial.” The Supreme Court identified three legal principles behind the longstanding judicial hostility to shackling: (1) physical restraints visible to a jury undermine the presumption of innocence; (2) shackles can interfere with the defendant's ability to participate in his own defense; and (3) judges must seek to maintain a dignified judicial process. Id. at 630–31, 125 S.Ct. 2007. The Supreme Court said the “essential state interests” that justify the use of physical restraints include “physical security, escape prevention, or courtroom decorum.” Id. at 628, 125 S.Ct. 2007 (citations omitted). The Supreme Court held “the Fifth and Fourteenth Amendments...