On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-257-02.
Before Judges Stern, Ciancia and Parrillo.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 17, 2004
Appellant G.G.N. appeals from a judgment of September 13, 2002, civilly committing him to the Special Treatment Unit under the Sexually Violent Predator Act (SVPA or the Act), N.J.S.A. 30:4-27.24 to -27.38.
On appeal, G.G.N. contends that he was constitutionally entitled to a jury trial; that the standard of proof for commitment must be beyond a reasonable doubt; that the State failed to meet the clear and convincing evidence standard; that hearsay testimony was erroneously relied upon by the hearing court; and that appellant's conversations with state psychiatrists were inadmissible because they were not tape recorded.
We find merit in G.G.N.'s claim that the State failed to meet its burden of proof and, to a lesser extent, that the court improperly relied upon hearsay evidence. We find insufficient merit in the remaining issues to support reversal.
As to the claim of entitlement to a jury trial, that issue was recently considered by us in In re Civil Commitment of J.H.M., 367 N.J. Super. 599 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). We there found no right to a jury trial under state law. Id. at 606-607. We now adhere to that determination.
So too, we find no basis to alter the burden of proof from that which is set out in the statute and which was approved by our Supreme Court in In re Commitment of W.Z., 173 N.J. 109, 130-131 (2002); accord J.H.M., supra, 367 N.J. Super. at 607; N.J.S.A. 30:4-27.32a. The standard of proof is clear and convincing evidence.
We find no basis to require, as a matter of constitutional compulsion, that interviews with state psychiatrists be tape recorded. See State v. Cook, 179 N.J. 533, 559-560 (2004) (declining to mandate the recordation of defendant's statements to police as a matter of due process). Additionally, both psychiatrists who interviewed G.G.N. said they offered to adjourn the interview or cancel it if G.G.N. was uncomfortable giving unrecorded statements. G.G.N. chose to go forward with the interviews.*fn1
To compel commitment under the SVPA, the State must prove by clear and convincing evidence that an individual who has been convicted of a sexually violent offense, suffers from a mental abnormality or personality disorder, and presently has serious difficulty controlling harmful sexually violent behavior such that it is highly likely the individual will reoffend. W.Z., supra, 173 N.J. at 120, 132. Our primary concern in the present instance is with the quality of proof presented by the State in light of its burden of proof and the particular facts.
There is no doubt that G.G.N. committed sexually violent offenses within the definition of the SVPA. He does not contend otherwise. In 1981 he pled guilty to three rapes and to one attempted rape, all occurring within the space of a month. G.G.N. was twenty-one years old at the time. He has also since admitted to a date rape in 1979 and to forced intercourse with two girls when he was in high school. G.G.N. also has convictions for non-sexual offenses such as larceny and possession of stolen property.
In 1981 G.G.N. was evaluated at the Adult Diagnostic and Treatment Center (ADTC) incident to his plea. His conduct was found to be repetitive and compulsive, thus falling under the purview of the New Jersey sex offenders law, N.J.S.A. 2C:47-1 to -10. He was sentenced to the ADTC at Avenel. He was given consecutive sentences aggregating forty years that resulted in a"max out" date of May 20, 2002.
The first six years of G.G.N.'s incarceration were spent in state prison. He was transferred to the ADTC on October 5, 1987. He remained at Avenel for fourteen years. During those fourteen years of treatment he participated in all available therapy programs. At one point he achieved the highest therapeutic status. He advanced to treatment level IV, which is for persons"who have completed most of the work," and was referred to the therapeutic community where there is greater independence and inmates try to help each other. G.G.N. was recommended for parole three or four times, most recently in April 1997. In 1992, Lawrence Turek, a staff clinical psychologist wrote:
It is this therapist's opinion, as well as the Treatment Staff of Panel A, to forward this case to the SCRB for consideration for Parole. We are of the opinion that [G.G.N.] has the necessary insight into himself and the control over his behavior and impulses to warrant consideration for Parole. His progress in treatment is significant. He has good insight into the dynamics of his deviant arousal pattern, has shown genuine empathy and concern for his victims, has demonstrated in his behavior greater self- esteem and confidence in himself, good interpersonal skills, the capacity to express his feelings, emotions, and needs appropriately, and the ability to reach out to others for help and assistance when the need arises. Understanding of himself and judgment is good. It is believed that he can make a successful re-adjustment back into the community with the support structures that will be conditions for his parole and is therefore a minimal risk for recommitting a sexual offense given his psychological and emotional growth to date. In 1995 the Special Classification Review Board (SCRB) forwarded G.G.N.'s case to the Parole Board for consideration with the comment"[p]rognosis remains good to excellent. Continued inpatient treatment is no longer recommended...."
Yet there developed concern that G.G.N. was"sabotaging his therapeutic gains" by various institutional infractions such as possessing baking soda to brush his teeth, possessing his own social security card, copying a gambling pool form from the newspaper, possessing toilet paper, and attempting to mail"State property" to his parents. The 2001 ADTC termination report prepared by a Dr. Schaupp and a social worker named Laura Totten was concerned with"self-sabotage." The report at one point states:
A persistent pattern of behavior that [G.G.N.] exhibits is self-sabotage, which has, and continues to occur when he appears to make therapeutic gains. His sabotaging behaviors usually result in institutional charges for violations ranging from Refusing to Obey an Order, Out of Place, Using Abusive Language and Possession of Anything not Authorized for Retention/Receipt, to Being in an Unauthorized Area and Stealing, for which he received 5 days detention in 1998. Although [G.G.N.] has been active in the Therapeutic Community and functioned as a coordinator and a member of the Self Help Committee, he had experienced some difficulty and requested to be removed from the community in Spring, 2001 despite treatment staff recommendations that he remain. [G.G.N.] received a charge in 5/01 for Possessing Unauthorized Material and received 5 days detention, which was suspended. As a result, he was removed from 1 Wing and was placed in a Level 3 Process Group in June, 2001. To his credit, [G.G.N.] utilized some group time to examine his behavior and returned to Level 4 and the Therapeutic Community in October. However, as recent as December, 2001 [G.G.N.] received charges for Attempting Unauthorized Use of Equipment and Preparing and Conducting a Gambling Pool and received 15 days detention, loss of commutation time..... [G.G.N.] was administered the MnSOST-R and Static-99, which both yielded results that place [G.G.N.] in the high risk category for sexual reoffense. [G.G.N.'s] criminal record, poor institutional adjustment and clinical concerns regarding sincerity and integration of knowledge combined with the scores on the actuarial instruments suggest that screening for civil commitment is warranted. If he is released to the community, participation in sex offender specific aftercare is strongly recommended. Our problem is that none of this information concerning G.G.N.'s fourteen years of treatment was presented by the State through first-party witnesses. Not one doctor, therapist, or employee of ADTC was called by the State. Instead, the State relied solely on the testimony of two psychiatrists, Dr. Gnassi and Dr. Siegel. The hearing judge in turn made no credibility findings per se, but obviously relied upon the testimony of both psychiatrists presented by the State.
The quality of Dr. Gnassi's testimony is open to question. Gnassi's report states:
On 12/20/01 [G.G.N.] reported to Lawrence A. Siegel, M.D. at the ADTC that he is having compelling urges to Sexually Assault Women. He further reported that anger fuels his Sexual Assaults and when a man is physical, the women [sic] is subservient. He likes the victim to listen to him.
Siegel, on the other hand, denied that G.G.N. ever reported such urges and explained that G.G.N.'s references to anger fueling sexual assaults were historical not current. Gnassi also admitted on cross-examination that that part of his report"seem[ed] to follow along" with the State's petition for commitment and he relied on that petition for other parts of his report.
Gnassi was not a treating doctor. He met G.G.N. for the first time on July 24, 2002, and spent about a half-hour with him. Gnassi spoke to G.G.N. again for a half-hour on the day of the hearing, August 2, 2002.
Gnassi said G.G.N. does not have any signs of psychosis. He shows intellectual remorse but not spontaneous remorse. Gnassi considered the possibility of sadism based upon how the original crimes occurred -- i.e., G.G.N. talked to the victims and did not"seem to have any empathy for what happened or remorse or spontaneous remorse even there." While acknowledging that G.G.N. has progressed in therapy, Gnassi never really addressed those fourteen years of treatment. He diagnosed G.G.N. with paraphilia NOS based on the crimes committed. The connection to the present day was only achieved by reference to disciplinary infractions in ADTC, infractions which"[i]n all honesty, I don't have the full description of some of these." As to those infractions, the following exchange took place on cross-examination:
Q: Okay. And if it's important to you and important to you in making your opinion, shouldn't you have investigated as to what he actually did and when?
A: I agree with you and I wasn't able to.
When asked why he diagnosed G.G.N. with paraphilia, Gnassi responded,"because they're non-consenting adults who he was involved with, basically." Based on his past record, Gnassi believed G.G.N. has"thoughts and feeling [sic] which continue, is my impression. I think he's improved. I think he has improved at the A.D.T.C. But how to figure out how much he's internalized in terms of control is the problem." Unfortunately, Gnassi had little response to his own rhetorical question. The only linkage he could find between the crimes in 1981 and the present day were G.G.N.'s infractions in the institution. While acknowledging he wasn't entirely sure what those infractions consisted of, and while ...