IN RE THE DETENTION OF PAUL MICHAEL BLAISE PAUL MICHAEL BLAISE, Respondent-Appellant/Cross-Appellee. STATE OF IOWA, Petitioner-Appellee/Cross-Appellant.
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IN THE COURT OF APPEALS OF IOWA
No. 9-136 / 07-0188
Filed April 22, 2009
IN RE THE DETENTION OF
PAUL MICHAEL BLAISE
PAUL MICHAEL BLAISE,
Respondent-Appellant/Cross-Appellee.
STATE OF IOWA,
Petitioner-Appellee/Cross-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Lee (North) County, Michael J.
Schilling, Judge.
Paul Michael Blaise appeals from his civil commitment as a sexually
violent predator, and the State cross-appeals from the district court‟s order
granting Blaise a new trial. GRANT OF NEW TRIAL AFFIRMED.
Mark C. Smith, State Appellate Defender, Steven L. Addington, Assistant
Public
Defender,
and
Greta
Truman,
Assistant
Public
Defender,
for
appellant/cross appellee.
Thomas J. Miller, Attorney General, Elisabeth S. Reynoldson, Assistant
Attorney General, and Becky Goettsch, Assistant Attorney General, for
appellee/cross-appellant State.
Heard by Vaitheswaran, P.J., and Doyle and Mansfield, JJ.
2
DOYLE, J.
Paul Michael Blaise appeals from his civil commitment as a sexually
violent predator, and the State cross-appeals from the district court‟s order
granting Blaise a new trial. Upon our review, we affirm on both appeals.
I. Background Facts and Proceedings.
Paul Blaise has a long history of sexually aberrant behavior, going back as
early as 1989. He was convicted of sexual abuse in the third degree in 1991
after abusing a nine-year-old girl and was sentenced to a ten-year term of
imprisonment. After his release, he was in and out of jail and prison for a variety
of offenses, including sexually related offenses. Even while incarcerated, Blaise
was unable to contain his sexual deviance and sexual assault threats, and as a
result, he received numerous disciplinary reports for sexual misconduct.
On October 17, 2005, less than six months after his latest release from
jail, Blaise was picking up cans in a Fort Madison park when he approached a
stranger and began talking to her. He asked the woman several inappropriate
questions about sex. Additionally, he asked the woman if she would perform
various sexual acts if someone threatened her with a gun. The woman became
frightened and contacted the police, and Blaise was arrested shortly thereafter in
the park while in possession of a gun.
He pleaded guilty to first-degree
harassment and was sentenced to a two-year term of imprisonment.
On October 16, 2006, while Blaise was serving his sentence for the
harassment offense, the State filed a petition alleging Blaise was a sexually
violent predator under Iowa Code chapter 229A (2005). Among other things, the
petition alleged that Blaise‟s 2005 harassment offense was a sexually motivated
3
offense. Thereafter, the district court found probable cause, and trial to a jury
commenced on January 8, 2007.
The morning of trial, Blaise‟s counsel made the following record:
Your Honor, [at] the pretrial conference that we held last
week, I asked the court to bifurcate this matter and I again am
requesting the court bifurcate the trial. I believe that the first issue
that the . . . jury has to decide is a factual issue of whether [Blaise‟s
2005 harassment offense] was a sexually violent offense. [Blaise]
was charged with harassment and it‟s the State‟s burden to prove
that that was a sexually violent offense in accordance with 229A of
the Iowa Code.
Because that does not require his entire
background, it does not require we go into detail about all past
criminal acts or other matters, it would be superfluous to it in fact
prejudice that one fact, we would ask that the jury decide that issue
first and then we‟d continue with the same jury and then go on to
the other issues. That would be the fairest way to proceed in this
matter.
The State resisted, arguing essentially that the same evidence would be used to
show that the 2005 harassment offense was a sexually motivated offense and
that Blaise was a sexually violent predator, and thus bifurcating the trial would
not hold any purpose or have any effect but to drag out the trial. The district
court overruled Blaise‟s motion, finding the request to be untimely and that there
was no authority for the court to bifurcate the trial. The trial then proceeded.
At trial, the State called its expert witness psychologist Joseph Belanger,
Ph.D., to testify. At the time of trial, Dr. Belanger was employed by the North
Dakota Department of Human Services as a forensic psychologist. His work
consisted predominantly of performing evaluations for “sexually dangerous
individuals,” North Dakota‟s equivalent to “sexually violent predators.” He was
also self-employed doing business as Psychological Services. He had focused
his work on sexually dangerous individuals since 1997, after North Dakota
4
passed a law similar to Iowa‟s sexually violent predator law, and had testified as
an expert witness in North Dakota over fifty times regarding the assessment of
sex offenders.
Dr. Belanger testified at trial that after reviewing Blaise‟s history and
interviewing Blaise, he formed an opinion that Blaise had a mental abnormality
broken down into two diagnoses: paraphilia not otherwise specified with the
descriptor nonconsent, and antisocial personality disorder. He explained that
persons with paraphilia not otherwise specified nonconsent are attracted to sex
with people that are unable or unwilling to consent to the sexual actions with
them. Additionally, he stated that for someone who has paraphilia nonconsent,
such as Blaise, knowing that their victim or their target is scared is arousing to
them. He opined that Blaise‟s actions underlying his 2005 harassment offense
were for Blaise‟s sexual gratification. He further opined that Blaise was more
likely than not to reoffend sexually.
Clinical and forensic psychologist Craig Rypma, Ph.D. and M.B.A.,
testified on Blaise‟s behalf as an expert witness. Dr. Rypma diagnosed Blaise
with attention deficit hyperactivity disorder and antisocial personality disorder.
He disagreed with Dr. Belanger‟s conclusions and opined that Blaise did not
suffer from a mental abnormality that predisposes him to commit sexually violent
offenses. He also opined that Blaise was not more likely than not to commit a
sexually violent offense if not confined in a secure facility. He further opined that
Blaise‟s actions underlying his 2005 harassment offense were not for Blaise‟s
sexual gratification.
5
The jury found Blaise‟s 2005 harassment offense was a sexually
motivated crime, and then found Blaise to be a sexually violent predator. The
district court then entered an order of commitment. On January 25, 2007, Blaise
filed his notice of appeal, raising several grounds for appeal.
Sometime after Blaise was committed, Dr. Belanger quit his job with the
state of North Dakota. This occurred after the Department of Homeland Security
seized Dr. Belanger‟s home computer, upon which he had downloaded child
pornography. On November 27, 2007, Dr. Belanger wrote a letter to the North
Dakota Board of Psychologist Examiners. In the letter he disclosed that he had
survived some “horrific” abuse in his childhood.
He said his melancholic
depressions and anxiety attacks became worse as he started to do evaluations
of sexually dangerous individuals. He admitted that in retrospect that because of
his own issues he should have told his supervisor immediately and let somebody
else do the work. He also stated: “I found [my work] appalling and frightening.”
He admitted that he was ill but he did not know how ill. The letter was disclosed
to the North Dakota Attorney General, and then apparently to the Iowa Attorney
General in early December 2007.
It is believed that the office of the Iowa
Attorney General then disclosed the letter to counsel for Blaise.
On December 18, 2007, Blaise filed a motion for new trial based on newly
discovered evidence.1
He alleged that the State‟s expert was “an admitted
mentally ill pedophile with serious difficulty controlling his behavior.” The State
resisted. After a hearing was held on April 2, 2008, the district court granted a
1
Blaise later filed an amended motion for a new trial and then an amended motion and
petition for a new trial.
6
new trial and ordered it be scheduled within ninety days. The State then filed its
notice of appeal.
Upon the State‟s combined motion to stay the district court proceedings
and to consolidate the two pending appeals, the Iowa Supreme Court stayed the
district court proceedings, consolidated the appeals, and allowed the parties
additional time for briefing and the filing of a supplemental appendix.
In his appeal, Blaise contends the State failed to prove he was
incarcerated on a sexually violent offense and the district court erred in denying
his motion to bifurcate. In its cross-appeal, the State claims the district court
erred in granting a new trial.
II. Sexually Violent Offense.
Blaise first argues the State failed to prove he was incarcerated on a
sexually violent offense. He contends there was insufficient evidence to support
the jury‟s finding that Blaise harassed his victim for the purpose of his sexual
gratification, and therefore the State‟s petition should be dismissed. 2 We review
a challenge to the sufficiency of the evidence for errors at law. In re Detention of
Betsworth, 711 N.W.2d 280, 286 (Iowa 2006).
Under the statutory scheme of chapter 229A:
2
One might argue that we need not reach the sufficiency of the evidence to support the
jury‟s finding since this is a civil proceeding and there will be a new trial in any event.
However, we believe the prudent course here is to decide that issue. This avoids any
possible due process issue, see Gomes v. Gaughan, 471 N.W.2d 794, 797 (1st Cir.
1973) (noting that multiple civil commitment trials would likely violate due process), or
other potential concerns, see In re Detention of Anderson, 139 P.3d 396, 405-06 (Wash.
App. 2006) (Armstrong, J., dissenting) (expressing the view that where there was
insufficient evidence to prove a recent overt act, retrial should not occur). Thus we will
decide whether there was sufficient evidence to support the jury‟s finding that Blaise‟s
harassment conviction was a sexually violent offense, without holding that we are
required to do so.
7
If the court or jury determines [beyond a reasonable doubt]
that the respondent is a sexually violent predator, the respondent
shall be committed to the custody of the director of the department
of human services for control, care, and treatment until such time
as the person‟s mental abnormality has so changed that the person
is safe to be placed in a transitional release program or discharged.
Iowa Code § 229A.7(5). A “sexually violent predator” is defined as:
[A] person who has been convicted of or charged with a sexually
violent offense and who suffers from a mental abnormality which
makes the person likely to engage in predatory acts constituting
sexually violent offenses, if not confined in a secure facility.
Id. § 229A.2(11). Thus, the State was required to prove three elements beyond a
reasonable doubt: (1) Blaise had been convicted of or charged with a sexually
violent offense;3 (2) Blaise suffered from a mental abnormality; and (3) Blaise‟s
mental abnormality made him likely to engage in predatory acts constituting
sexually violent offenses. See In re Detention of Swanson, 668 N.W.2d 570, 575
(Iowa 2003). At issue here is the third element.
“Likely to engage in predatory acts” is defined in section 229A.2(4):
“Likely to engage in predatory acts of sexual violence” means that
the person more likely than not will engage in acts of a sexually
violent nature. If a person is not confined at the time that a petition
is filed, a person is “likely to engage in predatory acts of sexual
violence” only if the person commits a recent overt act.
Id. § 229A.2(4). If the respondent is confined at the time the sexually violent
predator petition is filed, the State must prove that the confinement is for a
sexually violent offense. See In re Detention of Gonzales, 658 N.W.2d 102, 104
(Iowa 2003). Among other things, a sexually violent offense includes “[a]ny act
which, either at the time of sentencing for the offense or subsequently during civil
3
Blaise stipulated at trial that he had been convicted of or charged with a sexually
violent offense in 1990, meeting the first element.
8
commitment proceedings pursuant to this chapter, has been determined beyond
a reasonable doubt to have been sexually motivated.”
Iowa Code
§ 229A.2(10)(g) (emphasis added). “„Sexually motivated‟ means that one of the
purposes for commission of a crime is the purpose of sexual gratification of the
perpetrator of the crime.” Id. § 229.2(9).
Although Blaise was confined at the time the State‟s petition was filed, his
confinement was for his 2005 harassment in the first degree conviction, a crime
that is not a per se sexual offense. Thus, the State was required to prove that
Blaise committed his 2005 harassment offense for his sexual gratification, to
show that the harassment charge was sexually motivated and therefore a
sexually violent offense.
At trial, the jury heard evidence concerning Blaise‟s past sexual offenses
and deviances, as well as testimony from Blaise‟s 2005 harassment offense
victim. The victim testified that she was very, very scared by Blaise‟s sexual
questions and hypothetical questions about what she would do at gunpoint.
Additionally, Dr. Belanger testified that it was his opinion that Blaise committed
the harassment offense for Blaise‟s sexual gratification, based upon Blaise‟s
mental abnormality.
Upon our review, we find the State presented sufficient
evidence for the jury to conclude that Blaise‟s conviction for harassment in the
first degree was for Blaise‟s sexual gratification and thus sexually motivated.
However, given the district court‟s grant of a new trial concerning Dr. Belanger‟s
credibility, we next turn to that issue.
9
III. New Trial.
Generally, “[t]rial courts have broad but not unlimited discretion in ruling on
motions for new trials.”
Benson v. Richardson, 537 N.W.2d 748, 762 (Iowa
1995). A court is given “unusually broad discretion” in ruling on a motion for new
trial that is on the basis of newly discovered evidence.
State v. Miles, 490
N.W.2d 798, 799 (Iowa 1992) (citation omitted).
This broad discretion is particularly appropriate. It is important to
distinguish between the unavoidable, legitimate claims and those
proposed in desperation by a disappointed litigant. From its closer
vantage point the presiding trial court has a clearer view of this
crucial question, and we generally yield to its determination.
Id. Nevertheless, motions for new trial based on newly discovered evidence are
not favored.
Benson, 537 N.W.2d at 762.
A trial court‟s ruling will not be
disturbed unless the evidence clearly shows the court has abused its discretion.
Id. We will find an abuse of discretion if the trial court clearly exercised its
discretion on untenable grounds or acted unreasonably. Id. This court is slower
to interfere with a grant of a new trial than with its denial. Iowa R. App. P.
6.14(6)(d).
In order for Blaise to prevail on his petition for new trial based on a claim
of newly-discovered evidence, he must show: (1) that the evidence is newly
discovered and could not, in the exercise of due diligence, have been discovered
prior to the conclusion of the trial; (2) that the evidence is material to the issues in
the case and not merely cumulative or impeaching; and (3) that the evidence will
probably change the result if a new trial is granted. Benson, 537 N.W.2d at 762.
Under Iowa law, “newly discovered evidence” sufficient to merit a new trial is
10
evidence which existed at the time of trial, but which, for excusable reasons, the
party was unable to produce at the time. Id. at 762-63.
A. Newly Discovered Evidence.
At the hearing for new trial, Dr. Rypma expressed concern about
Dr. Belanger‟s ability to properly evaluate individuals, including Blaise, for
possible civil commitment as sexually violent predators. Dr. Rypma opined that a
professional psychologist doing an evaluation must always maintain a
professional distance.4 In Dr. Rypma‟s opinion, persons like Dr. Belanger with a
history of sexual issues would have a tendency to find pathology or mental
abnormality in individuals more readily than would otherwise be expected. He
further opined that persons with unresolved issues of sexual abuse are more
likely to possess the tendency to diagnose a mental abnormality when one is not
actually present. Dr. Rypma further stated that such a person would be more
likely to find a risk of reoffense than would a professional without a background of
unresolved issues of sexual abuse.
In resisting Blaise‟s motion for a new trial, the State offered a report from
Dr. Amy Phenix, a clinical psychologist specializing in forensic psychology and
violent and sexual offender evaluations.
She reviewed the psychological
evaluations completed by Dr. Belanger, and concluded that she agreed with
Dr. Belanger‟s opinion that Blaise was more likely than not to engage in
predatory sexually violent offenses if not confined in a secured facility.
4
Dr. Belanger apparently agrees. During his testimony at trial, he stated that “you have
to be able to step back and take a more neutral, forensic stance to assess the risk and
that is substantiated in the record.”
11
The trial court found the parties agreed that the “evidence” was discovered
following trial and that it could not with reasonable diligence have been
discovered and produced at trial. The letter would not, in and of itself, qualify as
“newly discovered evidence” since it did not exist at the time of the trial. The
parties did not agree as to whether Dr. Belanger‟s problems, as revealed in the
letter, existed at the time of trial. The State argued in its resistance to the motion
for new trial, at the hearing thereon, and on appeal that there was no evidence
that Dr. Belanger‟s “issues” existed at the time of trial. Although Dr. Belanger
does not set forth at what period of time he should have started letting others do
his work because of his “own issues” stemming from “horrific” childhood abuse, a
review of the record leads to a conclusion that Dr. Belanger was suffering from
his condition at or before the time he evaluated Blaise. He stated in his letter that
his melancholic depressions and anxiety attacks became worse as he started
evaluations of sexually dangerous individuals.
He testified he started doing
those evaluations in 1997. Additionally, he testified that he had testified on these
issues as an expert more than fifty times prior to Blaise‟s trial. The district court
found:
[T]he critical evidence with respect to the Petition—Belanger‟s
horrific abuse, his self-disclosure that he should have asked others
to do the evaluations, and his statement that he found these
evaluations to be appalling and frightening—is evidence that
existed at the time of trial, notwithstanding Blaise‟s failure to
establish the precise time frame for all of the newly discovered
evidence.
We agree.
Additionally, we find the evidence of Dr. Belanger‟s illness and
deviant behavior could not, with reasonable diligence, have been discovered and
produced at trial.
12
B. Materiality.
The district court also concluded the evidence of Dr. Belanger‟s deviant
behavior was material.
“Evidence is material when there is a „reasonable
probability‟ that disclosure would have changed the result of the proceeding.”
State v. Piper, 663 N.W.2d 894, 905 (Iowa 2003) (quoting State v. Veal, 564
N.W.2d 797, 810 (Iowa 1997)). Cumulative evidence is not material. See Larson
v. Meyer & Meyer, 227 Iowa 512, 518-19, 288 N.W. 663, 666-67 (1939).
Likewise, evidence which is merely impeaching is generally not considered
material, but evidence may be both material and also “incidentally impeach” a
witness and may properly serve as the basis for a new trial. Dobberstein v.
Emmet County, 176 Iowa 96, 104-05, 155 N.W. 815, 818-19 (1916).
The court recognized that some of the evidence is indeed impeaching and
a portion would be inadmissible at trial, but concluded that:
Dr. Belanger‟s admission that he should not have performed
evaluations of sexually dangerous individuals, coupled with his
description of that work as both “frightening and appalling,” goes to
the very heart of his qualification and bias as an expert witness,
and thus to the accuracy of his opinions on the crucial subject of
mental abnormality and likelihood of reoffending.
This new
evidence is clearly material.
Its materiality is even greater
considering Belanger‟s role as the State‟s only expert, and the vital
role his testimony served in sustaining the State‟s burden of proof,
resulting in Blaise‟s adjudication and commitment as a sexually
violent predator.
We agree.
C. Change in Result.
Lastly, the trial court concluded that “the new evidence about Belanger is
such that if the jury heard it at trial the jury verdict would probably change.” For
Blaise to be entitled to a new trial, it must be shown that the new evidence will
13
probably change the result if a new trial is granted. Benson, 537 N.W.2d at 762.
Put another way, “[i]f it can be said that in all probability the newly discovered
evidence will not affect the result in case of a second trial, then the motion should
be denied.” Henderson v. Edwards, 191 Iowa 871, 873, 183 N.W. 583, 584
(1921). To be sure, this rule is speculative, but nevertheless is a reasonably safe
guide. Id. We agree with the trial court that if this case were tried again with the
new evidence about Dr. Belanger, the results would probably change.
Our conclusions might be different had Dr. Belanger‟s expertise been in a
different area, such as accident reconstruction and his testimony limited to that
field.
Under those circumstances his illness and deviant behavior, being
unrelated to the subject matter of his testimony, would probably have no impact
on his credibility or bias concerning the subject matter of his testimony. But in
this case, Dr. Belanger‟s illness and deviant behavior directly parallels that of the
very subjects he was entrusted to evaluate and strikes at the very heart of the
subject matter of his testimony. Under these circumstances, we have serious
concerns as to whether Dr. Belanger could maintain a professional distance
when evaluating a candidate, such as Blaise, for commitment.
In enacting chapter 229A, the legislature recognized the necessity to
establish a civil commitment procedure for the long-term care and treatment of
sexually violent predators; procedures that reflect legitimate public safety
concerns, while at the same time, providing treatment services designed to
benefit sexually violent predators. Iowa Code § 229A.1 (2005). As important as
the State‟s interest is in protecting the public and victims from sexually violent
predators, that interest cannot outweigh the fundamental right to a fair trial.
14
Involuntary commitment “for any purpose constitutes a significant deprivation of
liberty that requires due process protection.” Addington v. Texas, 441 U.S. 418,
425, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323, 330-31 (1979) (citations omitted).
Where the significant deprivation of a person‟s liberty is at stake, as here, we
think it is more prudent to err on the side of caution. The disturbing nature of
Dr. Belanger‟s own illness and deviant behavior, that mirrors the mental illness of
the very subjects he evaluated, including Blaise, is sufficient to undermine the
court‟s confidence in a jury verdict based largely on his testimony. A new trial is
therefore warranted, but our analysis does not end here.
The State argues the “newly discovered evidence” proffered by Blaise
would not affect the result in case of a second trial since, as a practical matter, it
would call another expert, clinical and consulting psychologist Amy Phenix,
Ph.D.5 Dr. Phenix reviewed Dr. Belanger‟s psychological evaluation of Blaise
and offered a preliminary opinion that agreed with the findings of Dr. Belanger‟s
assessment that Blaise meets the criteria as a sexually violent predator. At first
blush the State‟s argument appears attractive—just substitute Dr. Belanger with
an expert who holds the same opinion, assume the results would be the same,
and thereby avoid a second trial.
“In almost every setting where important
decisions turn on questions of fact, due process requires an opportunity to
confront and cross-examine adverse witnesses.” Goldberg v. Kelly, 397 U.S.
254, 269, 90 S. Ct. 1011, 1021, 25 L. Ed. 2d 287, 300 (1970) (citations omitted).
This right to cross-examination has ancient roots and has been zealously
protected from erosion in all types of cases, not just criminal cases. See id.
5
No doubt Dr. Belanger would not be called by the State to testify at a second trial.
15
(citing Greene v. McElroy, 360 U.S. 474, 496-97, 79 S. Ct. 1400, 1413, 3 L. Ed.
2d 1377 (1959)). If the State wishes to rely on the opinions of Dr. Phenix, Blaise,
who faces a significant deprivation of liberty, has the right to confront and crossexamine Dr. Phenix. That can only be done at a second trial. We therefore
affirm the trial court‟s grant of a new trial.
IV. Bifurcation.
Blaise‟s final argument asserts that the district court erred in denying his
motion to bifurcate the trial.
He contends the issue of whether his 2005
harassment offense was a sexually violent offense should have been tried to the
jury separately because the evidence of his prior bad acts was not relevant to
that issue. A motion to bifurcate “is a matter of the trial court‟s discretion and will
be disturbed only if the court abused that discretion.”
Briner v. Hyslop, 337
N.W.2d 858, 870 (Iowa 1983); see also Beeman v. Manville Corp. Asbestos
Disease Comp. Fund, 496 N.W.2d 247, 251 (Iowa 1993). Because we find that a
new trial is warranted, we need not decide this issue and we do not address the
propriety of this procedure. See Swanson, 668 N.W.2d at 574 n.3.
V. Conclusion.
For all the above reasons, we find the newly discovered evidence
warrants a new trial, and we affirm the district court‟s grant of a new trial.
Because we conclude a new trial is warranted, we conclude the State must again
prove to a jury, beyond a reasonable doubt, all elements necessary to establish
that Blaise meets the statutory definition of a sexually violent predator, excluding
the element previously stipulated by Blaise to have been met.
Additionally,
because we find a new trial is warranted, we do not address the propriety of
16
bifurcating the trial, nor do we decide other issues claimed by Blaise to be the
subject of his appeal.
GRANT OF NEW TRIAL AFFIRMED.
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