March 11, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF D.H.S. SVP-262-02
On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP No. 262-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 25, 2008
Before Judges Parrillo and Baxter.
D.H.S. appeals from the September 24, 2007 order continuing his commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He was initially committed to the STU on August 13, 2002. His commitment has been previously reviewed and continued on September 6, 2002 and February 8, 2005. We affirm.
The predicate offense was an October 18, 1987 aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1). A detailed entry in D.H.S.'s treatment record contains his August 8, 2007 description of that offense. According to D.H.S., on the night in question he felt rejected and "castrated" because both of his girlfriends refused to engage in sexual relations with him. He ran into a male friend and the two got high on PCP and robbed some gas stations. They then went to strip clubs to "lay low." D.H.S. recalled thinking that "someone was going to pay today." At the strip clubs, after watching several lap dances, D.H.S. became sexually aroused but was asked to leave because he was too young. He viewed this as another rejection, and he felt "inadequate and angry."
As D.H.S. and his friend entered his apartment building, D.H.S. saw a twenty-eight-year-old woman with whom he was infatuated. As she stepped into the elevator, D.H.S. reached up and turned out the light while his accomplice was wrestling with the victim trying to pull her pants down. While still feeling "pissed off," D.H.S. admitted that he pulled out his penis, stood over her and told her "to get it right." At this point, she had stopped fighting, and D.H.S. engaged in forcible vaginal intercourse. Afterward, his accomplice also sexually assaulted her. When asked, D.H.S. denied taking a bottle from the victim's bag and hitting her over the head with it, although police found a large pool of blood in the elevator and blood on D.H.S. On April 6, 1990, D.H.S. was sentenced to a twenty-year term of imprisonment with a ten-year period of parole ineligibility for that October 18, 1997 sexual assault.
On April 6, 1990, D.H.S. was also sentenced to a concurrent twenty-year prison term for the gas station robberies that he committed on the same night that he and his accomplice committed the aggravated sexual assault in question.*fn1 When D.H.S. was on the verge of maxing out on the two sentences that had been imposed on April 6, 1990, the State petitioned for his involuntary civil commitment as a sexually violent predator.
D.H.S.'s conviction on the predicate offense of aggravated sexual assault was preceded by a long history of juvenile adjudications of delinquency. In the year 1984 alone, he was adjudicated delinquent of the following charges: simple assault, robbery, burglary, joyriding and receiving stolen property. The next year, he was adjudicated delinquent of five separate burglaries, followed by an attempted robbery in 1986.
An involuntary civil commitment can follow service of a sentence, or other criminal disposition, when the offender "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment." N.J.S.A. 30:4-27.26(b). "[T]he State must prove
[a] threat [to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts] by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior," and the State must establish that it is highly likely that the committee will reoffend by clear and convincing evidence. Id. at 132-34; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 607-08 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).
During the September 24, 2007 hearing that is the subject of this appeal, the State presented the testimony of Dr. Howard Gilman, a psychiatrist. When asked for his opinion about how D.H.S. was progressing in treatment, Gilman answered "D.H.S. goes to treatment which is good. He speaks in treatment on occasion which is good. But he has had some notable problems in treatment. . . . [H]e's refused to attend arousal reconditioning." When Gilman questioned D.H.S. about that refusal, D.H.S. maintained that he had no need to change his arousal pattern because his arousal pattern is not deviant. D.H.S. denied any pedophilic, sadistic or other sexual deviance.
Gilman also described the results of the Static-99 testing that he administered to D.H.S. on June 18, 2007, reporting that D.H.S. received a score of , which placed him at "high" risk of reoffending. When asked if anything in the treatment records or in his interview with D.H.S. would reduce that high level of risk, Gilman answered no.
Gilman diagnosed D.H.S. as suffering from: (1) a history of substance abuse, based upon D.H.S.'s own reports of a history of substance abuse as well as his admission that the 1987 offense occurred while he was high on PCP; and (2) antisocial personality disorder.
Finally, Gilman opined that the mental abnormality and personality disorder that he diagnosed affects D.H.S. emotionally, cognitively or volitionally so as to predispose him to sexual violence with a "high" risk of sexually reoffending in the foreseeable future unless confined for further treatment. When asked to explain the basis for this opinion, Gilman explained that "things haven't changed significantly. [D.H.S.] continues to . . . have the anti-social features of his disorder continuing at full play."
On cross-examination, Gilman agreed that: of the thirty-eight institutional infractions that D.H.S. incurred at Riverfront State Prison, none involved violence; D.H.S.'s behavior at the STU had been "less aggressive" than his behavior prior to his incarceration; D.H.S. had "taken the floor . . . voluntarily . . . [an] average, maybe slightly more than [average], number of times; D.H.S. seemed to be a willing participant in his treatment; D.H.S. had completed eight treatment modules; and his participation in those modules was rated "good" and in some instances "excellent." After stating that D.H.S.'s participation in treatment modules was "good" to "excellent," Gilman pointed out that because D.H.S. remained at Phase-2 of treatment, "there is a significant question about how effectively he's dealt with issues" such as victim empathy and remorse.
D.H.S. stipulated to the admission in evidence of Dr. Gilman's September 13, 2007 psychiatric report. The opinions Gilman expressed in his report were consistent with his testimony on direct that D.H.S. had made little progress in treatment. Among the observations Gilman made in his report were the following: D.H.S. had not discussed his "assault cycle" in group during the past year; D.H.S. spent a "significant amount of time" during group therapy sessions complaining that he was being "selectively targeted" for possession of contraband items; D.H.S. "denied ever having rape fantasies despite having reported so to previous evaluators."
Gilman's report also noted that: when confronted about prior statements he made to evaluators admitting to rape fantasies, D.H.S. stated that he was "often misunderstood" and that "his words were taken out of context"; a multi-disciplinary treatment team report dated October 26, 2006, characterized D.H.S. as "vacillating from . . . a positive attitude and invested in treatment" to "viewing himself as a victim of the system"; D.H.S. often demonstrates poor frustration tolerance; D.H.S. "took the floor" to discuss his history of sexually offending on only four occasions during a six-month review period; although D.H.S. had "actively participate[d]" in group therapy sessions prior to the November 2006 treatment boycott, when he resumed attending group therapy in March 2007, his participation was "noted to be minimal."
In his report, Gilman opined that D.H.S.'s "high likelihood to sexually reoffend" was based on several factors: his history of repeated sexual assaults, violent behavior and reoffending despite legal sanctions; his diagnosis of Antisocial Personality Disorder; and his score of on the Static-99 Test.
Finally, Gilman opined that D.H.S. demonstrates symptoms of a severe Antisocial Personality Disorder because when describing his crimes, D.H.S continues to "play down the violence of the crimes as well as the extent of his involvement." Gilman also observed that D.H.S. claimed that he had a "relationship with . . . his sexual assault victim, although there is nothing in the police reports, pre-sentence report or other legal documents that indicates this."
Gilman was the only witness to testify on behalf of the State. D.H.S. stipulated to the admission in evidence of the June 29, 2007 Treatment Progress Review Committee (TPRC) report prepared by Doreen Stanzione, a psychologist. According to that report, the TPRC unanimously recommended that D.H.S. remain in Phase-2 of treatment because of his lack of progress. The TPRC also administered the Static-99 test to D.H.S. and reported a score of 8, placing D.H.S. at a high risk of reoffending.
The TPRC reached a slightly different conclusion about the psychiatric conditions from which D.H.S. was suffering than Gilman had reached. Although the TPRC agreed with Gilman's diagnoses of substance abuse and antisocial personality disorder, the TPRC concluded that D.H.S. also suffered from "paraphilia, NOS (non-consent)." The TPRC explained those three diagnoses as follows:
The first disorder listed, Paraphilia, NOS (non-consent), means that [D.H.S.] experiences recurrent and intense fantasies, urges, and/or behaviors involving sexual arousal to females, who by virtue of force and/or their age are unable to consent. There is a compulsive element to [D.H.S.'s] sexual pathology, suggested by his having committed a sexual offense while on bail. [D.H.S.] has described acting on this paraphilic arousal on three occasions. [D.H.S.] has described having a paraphilic arousal to rape, but has later recanted these statements. [D.H.S.'s] abuse of a variety of substances as a means to cope supports the diagnosis of Polysubstance Dependence . . .
The . . . Antisocial Personality Disorder implies that the person suffers from a long-term maladaptive pattern of behavior involving a pervasive disregard for the rights and well-being of others. [D.H.S.] demonstrated an early pattern of antisocial behavior with more than thirty-three arrests as a juvenile. [D.H.S.] has demonstrated poor impulse control, a reckless disregard for the safety and well-being of others, failure to conform to social norms with respect to lawful behaviors, and difficulties experiencing empathy for others.
The TPRC also opined that in D.H.S.'s description of his offense history, he "has generally downplayed the level of violence as well as his role in the assaults." The TPRC also observed that because D.H.S. "was the first to assault the victim of the predicate offense, . . . [t]his negates [his claim of being] a more passive participant. As such, it is imperative that he gain a better understanding of his offending and confront his own role."
The TPRC report made a number of treatment recommendations, which included: (1) "gaining a better understanding of the Build Up Phase of his cycle"; (2) abandoning his adherence to the "prison code" of reluctance to expose his accomplishes because the "prison code" interferes with establishing trust in his treatment providers; (3) addressing his "triangulation of anger with women"; and (4) exploring the role of substance abuse in his offense history. The TPRC report closed with the observation that even after the TPRC clinical interview was completed and the Committee had made those recommendations to D.H.S., he had not "done much work on his offending," and had refused to return to process group until he spoke to his attorney.
D.H.S. did not testify, but instead presented the testimony of his mother, B.S.M. She testified that she and D.H.S. had participated in the Family of Origin module, and that he was welcome to live with her upon discharge. She also testified that she had located a counseling center nearby and had lined up a job for him once he was released.
At the conclusion of the testimony, Judge Perretti made detailed findings of fact covering sixteen transcript pages. In those findings, the judge discussed the same testimony that we have described and she concluded:
The testimony and evidence presented by the State was clear and convincing. The respondent continues to be a sexually violent predator, and the court is clearly convinced that he must be confined for an additional year to the STU for treatment.
He suffers from abnormal mental conditions and personality disorders that predispose him to commit sexually violent acts because of their influence on his cognitive, emotional and volitional functioning. He has serious difficulty controlling his sexually violent acts and is highly likely to commit sexually violent acts if not continued in custody for further care.
On appeal, D.H.S. argues that both the TPRC and Dr. Gilman impermissibly relied on D.H.S.'s admission to Ward in the Avenel report that he committed the 1989 sexual assault that was dismissed. D.H.S. argues that our opinion in In the Matter of the Civil Commitment of E.S.T., 371 N.J. Super. 562, 575 (App. Div. 2004) prohibits an expert such as Dr. Gilman from relying upon a statement attributed to D.H.S. in a report prepared by another expert on an earlier occasion.
Nothing in our opinion in E.S.T. prohibits an expert from relying upon a statement made by a defendant to an Avenel evaluator. Instead, our decision prohibits the State from relying on forensic expert opinions from psychiatrists who had never treated the inmate, but who had merely signed the clinical certificates that led to the initial commitment order. Id. at 573. We held that "fundamental fairness" prohibits the State from eliciting testimony from a treating psychiatrist about the hearsay opinion of a forensic expert who does not testify. Id. at 575.
When we held in E.S.T. that the opinion of a non-testifying expert cannot be "bootstrapped into evidence" in that fashion, ibid., we specifically held otherwise concerning hearsay evidence contained in "pre-sentence reports and other investigative materials." Id. at 576. We concluded that hearsay opinion from those sources was indeed admissible "but only as a basis for the expert's opinion," and not as "substantive evidence." Ibid. We consider an Avenel report to be the equivalent of a pre-sentence report for purposes of hearsay analysis. Accordingly, we reject D.H.S.'s contention that our opinion in E.S.T. prohibits Dr. Gilman from relying on D.H.S.'s statements to Ward as a basis for forming his opinion.
Our scope of review is "extremely narrow," and we must defer to the trial judge's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001) (citing State v. Fields, 77 N.J. 282, 311 (1978)); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).
Measured by this standard, the September 24, 2007 order must be affirmed. Our review of Judge Perretti's findings and conclusions demonstrates that she properly evaluated both the actuarial and clinical evidence before her. The record amply supports her conclusion that: D.H.S.'s diagnosis of paraphilia is unchallenged; his participation in treatment has been uneven, and at times indifferent; his lack of insight into his deviant arousal and history of violence is well-documented; and his progress in treatment has been minimal. We conclude that the record fully supports Judge Perretti's findings and satisfies the State's heavy burden of proof that D.H.S. continues to qualify as a sexually violent predator and remains subject to involuntary commitment.