This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




In the Matter of:

Paul Malcolm Lindberg.

Filed September 30, 1997

Affirmed in part and reversed in part

Toussaint, Chief Judge

Hennepin County District Court

File No. P99660333

William L.H. Lubov, 2445 Park Avenue, Minneapolis, MN 55404 (for appellant Lindberg)

Michael O. Freeman, Hennepin County Attorney, Karen Ann Roesler, Carolyn A. Peterson, Assistant County Attorneys, A-2000 Government Center, Minneapolis, MN 55487 (for respondent)

Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Amundson, Judge.

TOUSSAINT, Chief Judge

During appellant Paul Malcolm Lindberg's imprisonment at the Minnesota Correctional Facility (MCF)-Lino, for the second-degree murder of M.K., the civil commitment review coordinator, respondent Ralph Cornelia, filed a petition to commit Lindberg as a sexual psychopathic personality (SPP) and a sexually dangerous person (SDP). The trial court granted Lindberg's motion to dismiss the SPP count of the petition at the conclusion of respondent's case-in-chief.

After the case was submitted, the trial court concluded that (1) Lindberg should be committed as an SDP, (2) commitment to the Minnesota Sexual Psychopathic Personality Treatment Center (MSPPTC) was the least restrictive alternative placement, and (3) Lindberg's motion for a new trial should be denied. The trial court further concluded, sua sponte, that Lindberg should be committed as a mentally ill and dangerous person (MID).

Lindberg argues that (1) the trial court erred in its evidentiary and procedural rulings and (2) his commitments as an MID and SDP were not proven by clear and convincing evidence. Because (1) the trial court did not err in its evidentiary rulings or trial procedures and (2) grounds for Lindberg's commitment to the MSPPTC as an SDP, pursuant to Minn. Stat. § 253B.02, subd. 18b (1996), were proven by clear and convincing evidence, we affirm the SDP determination. But because, as respondent agrees, the record does not support the trial court's conclusion that Lindberg should be committed as MID, we reverse that determination.


Shortly after turning 18, Lindberg married G.J. Their daughter was born several months later and was hospitalized for a potentially life-threatening illness. On May 13, 1986, G.J. was at the hospital with their daughter, and Lindberg was at home.

M.K., a neighbor, visited Lindberg. During a sexual encounter between M.K. and Lindberg, a struggle ensued and Lindberg murdered M.K. by strangling her. He then put a cigarette lighter in her rectum and her keys in her vagina and spray painted her body green. Lindberg drove around with M.K.'s body wrapped in a rug and eventually dumped it, and he then called a local television station to report the location of his victim's body. Lindberg was convicted of second-degree murder. His scheduled release date was July 18, 1996, and his criminal sentence expires on May 12, 2001.

Lindberg has received treatment over the years while incarcerated. During his participation in treatment, he provided different versions of the sexual encounter that occurred prior to the murder. These ranged from stating the victim initially did not consent, that he "pushed" the issue of sex but it got out of hand, that he attempted to rape her, and that he raped her.

Evidence introduced at trial revealed that Lindberg sexually assaulted G. J., his former wife. She testified that about three weeks before the murder, he tried to strangle and rape her. She had not previously reported the rape to authorities or raised it in other court proceedings. During treatment, Lindberg, himself admitted to more instances of harming his ex-wife, typically after her refusals of his various sexual demands.

Dr. Roger Sweet, the court-appointed examiner, and Dr. Harvey Hoberman, respondent's expert, testified that Lindberg met the criteria for commitment as a sexually dangerous person. The trial court committed Lindberg as a sexually dangerous person and as a mentally ill and dangerous person. Lindberg appeals.



Lindberg's evidentiary and procedural challenges will be addressed first. Lindberg argues that the trial court improperly admitted the portion of his base file correctional records containing reports of his psychotherapy sessions with two psychologists. Lindberg, however, specifically stated at the trial that he did not object to the receipt of these records, and he may not raise the issue for the first time on appeal. See In re Richmond, 433 N.W.2d 429, 433 (Minn. App. 1988) (holding this court will not review issue raised for first time on appeal).

Lindberg next challenges the use of records and related testimony by psychologist Ralph Cornelia, who evaluated him for public-risk monitoring and eligibility for civil commitment. Lindberg contends he was not properly warned that the information he gave could be used for the commitment hearing. Cornelia testified that in addition to the limited confidentiality release Lindberg signed, he provided Lindberg with a statement that the evaluations were for the purposes of public-risk monitoring and commitment referral. Again, Lindberg failed to move to suppress the records or object to the testimony. He may not challenge it now. See id.

Lindberg also claims he was prejudiced by the trial court's decision not to sequester respondent's expert, Dr. Hoberman, during the testimony of the court-appointed examiner, Dr. Roger Sweet. Because Dr. Sweet was allowed to testify out of order and before Dr. Hoberman's testimony for scheduling reasons, Lindberg asserts that Dr. Hoberman had the opportunity to tailor his testimony to conform with Dr. Sweet's testimony. Lindberg also challenges the trial court's decision not to allow Dr. Sweet to attend the entire commitment proceeding.

The trial court is allowed to exercise discretion over how to conduct the hearing. Minn. R. Evid. 611(a). The decision whether to sequester witnesses is also the trial court's decision to make. Minn. Stat. § 253B.08, subd. 3 (1996); see Minn. R. Evid. 615. Further, the trial court specifically indicated it would consider the circumstances when weighing Dr. Hoberman's and Dr. Sweet's testimony. We conclude the trial court did not abuse its discretion and Lindberg failed to show that the ruling prejudiced him. See Jenson v. Touche Ross & Co., 335 N.W.2d 720, 725 (Minn. 1983) (holding prejudice must be shown before erroneous evidentiary ruling will be grounds for new trial).

Additionally, Lindberg argues that the testimony of his ex-wife, G.J., was not credible and her testimony should be stricken. Due deference must be given to the trial court's opportunity to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. Findings will not be reversed unless clearly erroneous and "the reviewing court is left with a definite and firm conviction that a mistake has been made." Snesrud v. Instant Web, Inc., 484 N.W.2d 423, 428 (Minn. App. 1992) (citing Gjorik v. Stoope, 401 N.W.2d 664, 667 (Minn. 1987)), review denied (Minn. June 17, 1992). The trial court here found that for a variety of reasons G.J. had minimized the sexual abuse perpetrated on her by Lindberg. The court further credited testimony and evidence from treatment staff as to statements appellant made while in treatment that he had sexually abused his former wife. We see no basis for overturning the trial court's credibility determination.

Next, Lindberg raises an attorney-client privilege issue. G.J. testified she told her lawyer, whom she had retained for her dissolution and termination of parental rights actions, that Lindberg had attempted to rape her. While G.J. initially agreed to waive her attorney-client privilege, she subsequently revoked her waiver. Lindberg claims G.J.'s testimony constituted a waiver of her attorney-client privileges and challenges the trial court's refusal to allow him to call G.J.'s attorney or to review her attorney's file.

[W]hen the holder of a privilege destroys the confidentiality of information by disclosure, the information loses its privileged character and the holder may no longer assert the privilege with respect to the disclosed information.

State v. Gore, 451 N.W.2d 313, 318-19 (Minn. 1990). While G.J.'s statement to her attorney that Lindberg attempted to rape her is no longer privileged, we see no basis for finding that Lindberg's due process rights were violated or that G.J.'s testimony should be stricken.

Finally, Lindberg challenges the trial court's assessment of testimony by various witnesses as to statements Lindberg made that supported the conclusion he had committed sexual offenses. Lindberg argues psychologist Cornelia entered an incorrect entry in his chart and failed to respond to his request to meet to correct it. He contends his comments were misconstrued by witnesses or were the result of their faulty memory. He also maintains that witnesses left out crucial parts of his comments and failed to accurately prepare or keep documentation recounting or detailing his comments. The assessment of credibility of witnesses' testimony is within the trial court's discretion and will not be reversed unless clearly erroneous. Snesrud, 484 N.W.2d at 428; Minn. R. Civ. P. 52.01. We see no reason to disturb the trial court findings.


The next issue concerns the merits of the trial court's decision that Lindberg met the standards for commitment as a sexually dangerous person. Minn. Stat. § 253B.02, subd. 18b(a) (1996), defines a "sexually dangerous person (SDP)" as one who

has engaged in a course of harmful sexual conduct as defined in subdivision 7a;

has manifested a sexual, personality, or other mental disorder or dysfunction; and

as a result, is likely to engage in acts of harmful sexual conduct as defined in subdivision 7a.

Subdivision 7a defines "[h]armful sexual conduct" as "sexual conduct that creates a substantial likelihood that a victim will suffer serious physical or emotional harm[.]" Minn. Stat. § 253B.02, subd. 7a (1996). The elements must be proven by clear and convincing evidence. Minn. Stat. § 253B.185, subd. 1 (1996) (providing procedures applicable to a mentally ill and dangerous commitment apply to SDP commitments); Minn. Stat. § 253B.18, subd. 1 (1996) (avoiding clear and convincing evidence required for mentally ill and dangerous commitment).

Lindberg challenges the trial court determination that he engaged in a "course of harmful sexual conduct" under Minn. Stat. § 253B.02, subd. 18b(a)(1). His argument is based on the theory that respondent failed to prove by clear and convincing evidence that he committed sexual assaults on his murder victim and his former wife.

The trial court found respondent showed by clear and convincing evidence that Lindberg had engaged in a harmful course of sexual conduct creating a substantial likelihood of serious physical or emotional harm as evidenced by his choking and raping his former wife during their marriage, his attempted rape and murder of his victim, and other acts of sexual misconduct as set forth in the findings. These findings provided clear and convincing evidence from which the trial court could conclude Lindberg met the statutory standard.

Lindberg also challenges the trial court determination that he is highly likely to engage in future acts of harmful sexual conduct creating a substantial likelihood of serious physical or emotional harm. See Minn. Stat. § 253B.02, subd. 18b(a)(3) (defining "sexually dangerous person" as requiring, inpart, that person must be "likely to engage in acts of harmful sexual conduct"); In re Linehan, 557 N.W.2d 171, 180 (Minn. 1996) (requiring that harmful sexual conduct must be "highly likely"), petition for cert. filed, (U.S. May 2, 1997) (No. 96-8876). When determining whether such future harm is likely, the trial court may conduct a "multi-factor" analysis. Linehan at 189.

Lindberg contends that the trial court failed to consider all of the factors and to make findings, and that the evidence did not support the prediction he was highly likely to engage in harmful sexual conduct. He argues that the testing did not support the prediction and he cites his participation in treatment and expressions of remorse.

Appellant is essentially challenges the trial court's assessment of the evidence, Our review of the record and findings shows that the court weighed the evidence and made numerous findings regarding the factors, which are not clearly erroneous.


The trial court sua sponte ordered Lindberg's commitment as MID. Lindberg contends and respondent agrees that no evidence was presented at the hearing supporting the MID commitment. No petition for commitment as MID was filed with the court. See Minn. Stat. § 253B.18, subd. 1 (1996) (on filing of petition, the court shall hear petition). Lindberg did not have the opportunity to address this issue at trial. While addressing the issue of appropriate placement, Dr. Sweet testified that although Lindberg may have met the definition of MID at the time of his offense, the evidence that he presently met the standard ranged from little to "next to none." Lindberg's commitment as MID was improper. We reverse it.

Affirmed in part and reversed in part.