Opinion
No. 36 / 99-1765.
Filed May 31, 2001.
Appeal from the Iowa District Court for Linn County, David S. Good, Judge.
Appeal from commitment proceedings under Iowa Code chapter 229A (1999).
APPEAL AFFIRMED; CROSS-APPEAL REVERSED.
Mark Smith, First Assistant Public Defender, and Thomas J. Gaul and Catherine Johnson, Assistant Public Defenders, for appellant.
Thomas J. Miller, Attorney General, and Scott D. Brown and Roxann M. Ryan, Assistant Attorneys General, for appellee.
Considered en banc.
Andrew Gaal appeals from a unanimous jury verdict finding him to be a sexually violent predator under Iowa Code section 229A.7(3) (1999), alleging constitutional violations. The State cross-appeals from the district court's ruling that commitment proceedings for sexually violent predators require a twelve-person jury and that the respondent is to be released if the twelve jurors cannot reach an unanimous verdict.
This appeal raises issues identical to those resolved in In re Detention of Williams, ___ N.W.2d ___, ___ (Iowa 2001), also issued today. Because Williams addresses most of the arguments advanced by Gaal, that opinion is dispositive of this appeal. We address separately the different issues raised by Gaal.
Gaal argues chapter 229A is punitive in nature, and violates the ex post facto laws, the double jeopardy clause, and substantive due process principles. However, Williams recognizes that we have previously resolved these issues. We found chapter 229A to be civil in nature in In re Detention of Garren, 620 N.W.2d 275, 283 (Iowa 2000). We further held neither ex post facto nor double jeopardy principles applied to chapter 229A proceedings. Moreover, we rejected Gaal's argument that chapter 229A violates his substantive due process rights because it does not provide for less restrictive alternatives.
Gaal further argues he was denied equal protection and due process of the law. He submits chapter 229A violates the equal protection clause because it treats mentally ill civil commitments under chapter 229 differently than mentally ill sexual offender commitments. This argument is identical to the equal protection challenge rejected in Williams. Additionally, Gaal contends the district court denied him due process when it failed to instruct the jury that "likely to engage in predatory acts of sexual violence" meant "highly likely to engage in acts of a sexually violent nature." We also rejected this due process argument in Williams.
In further support of his due process challenge, Gaal contends the district court erroneously refused to permit him to introduce evidence of less restrictive alternatives in the event of a commitment. Although the due process challenge raised in Williams differs slightly from the one presented here, the analysis of Williams disposes of this issue. In Williams, the district court permitted evidence of less restrictive alternatives, but denied a proposed jury instruction that would have required the State to prove there was no less restrictive alternative treatment facility. Wereasoned in Williams that because chapter 229A does not provide for placement in a less restrictive facility, the State must not prove such facilities exist for the respondent. We agree a respondent should be permitted to offer evidence that commitment in a secure facility is unnecessary, but not in the context of placement following commitment.
Lastly, Gaal argues the district court erred in permitting a psychologist for the State to testify at the commitment hearing as an expert who was not licensed to practice psychology in Iowa. However, a person need not possess a license in order to testify as a witness. Bandstra v. Int'l Harvester Co., 367 N.W.2d 282, 289 (Iowa Ct.App. 1985); see Hutchinson v. Am. Family Mut. Ins., 514 N.W.2d 882, 886 (Iowa 1994). We uphold the admission of expert testimony unless the district court has clearly abused its discretion. See Hutchinson, 514 N.W.2d at 886; Bandstra, 367 N.W.2d at 288. We do not believe the court abused its discretion in this case.
Our opinion in Williams also disposes of the State's arguments in its cross-appeal. Because chapter 229A is a civil statute, the jury will be empaneled with eight, not twelve, members. Furthermore, all verdicts must be unanimous. If the jury fails to return a unanimous verdict, the district court must discharge the jury and order a new trial.
APPEAL AFFIRMED; CROSS-APPEAL REVERSED.