July 2, 2008
IN THE MATTER OF THE CIVIL COMMITMENT OF S.H.A., SVP-315-03
On appeal from Superior Court of New Jersey, Law Division, Essex County, SVP-315-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 24, 2008
Before Judges Axelrad, Payne and Sapp-Peterson.
S.H.A. appeals from his civil commitment, on January 30, 2006, pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. S.H.A. had initially been committed by order dated August 11, 2003. However, upon appeal, we reversed the initial commitment order and remanded the matter for further proceedings as the result of evidentiary deficiencies in the initial hearing. In the Matter of S.H.A., No. A-6702-02T2 (April 29, 2005). The case was thereupon assigned to Judge Freedman, who reached the same determination as had the first judge, following a second hearing. This appeal ensued.
On appeal, S.H.A. raises the following arguments:
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT APPELLANT WAS SUBJECT TO COMMITMENT AS A SEXUALLY VIOLENT PREDATOR. (U.S. Const. Amend. XIV; N.J. Const. (1947) Art. I, Par. 1) (Partially Raised Below)
A. The State Failed to Proffer the Testimony of a Treating Psychiatrist.
B. The State's Proofs Were Insufficient as a Matter of Law.
C. The State Failed to Provide Clear and Convincing Evidence of A Present Serious Difficulty In Controlling Sexually Violent Behavior.
THE TERMS AND IMPLEMENTATION OF NEW JERSEY'S SVPA DENIED APPELLANT'S RIGHTS TO SUBSTANTIVE AND PROCEDURAL DUE PROCESS, AS WELL AS EQUAL PROTECTION AND CONFRONTATION. (U.S. Const. Amend. VI, XIV; N.J. Const. Art. 1, Par. 1) (Partially Raised Below)
A. Departures from the Terms of the Act.
B. Punitive Implementation of the Act.
C. The Absence of the Right to Trial by Jury and Burden of Proof Beyond a Reasonable Doubt in Our SVPA Cannot Withstand Constitutional Scrutiny Due to the Statute's Contents and Implementation. (Not Raised Below)
D. The Hearing Court Erred in Permitting Inadmissible Hearsay into Evidence and Relying on it in Reaching its Decision (U.S. Const. Amend. VI, XIV; N.J. Const. Art. 1, Par. 1) (Not Raised Below)
1. The Admission into Evidence of Arrest Reports, Victim Statements and Pre-Sentence Reports Containing Primary and/or Derivative Testimonial Hearsay Violated Appellant's Rights to Confrontation Because the Authors/Declarants of the Statements Therein Were Not Subjected to Cross-Examination.
2. The Admission into Evidence of . . . Arrest Reports, Victim Statements, Pre-Sentence Reports and Psychological Reports Based on The State's Experts' Use Thereof was Error as Such Evidence is not Permitted Under the Business Record Exceptions to the Rule that Hearsay is Inadmissible and the Admission was Not Limited as is Required for Admission under N.J.R.E. 703.
Following our review of the record in light of the briefs submitted by the parties and applicable law, we affirm.
In our initial opinion, we described relevant portions of S.H.A.'s criminal history in the following terms:
In 1986, S.H.A. pled guilty to second-degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2a(1), and attempted sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2c(1), after attempting to rape a seven-year-old and, when discovered by her mother, seeking to rape the mother. He was evaluated at the Adult Diagnostic and Treatment Center (ADTC), and at that time his behavior was found not to be repetitive and compulsive. S.H.A. was sentenced to a ten-year prison term with a five-year parole disqualifier, consecutive to a sentence imposed for a parole violation. In 1996, S.H.A. again pled guilty, this time to aggravated sexual assault pursuant to N.J.S.A. 2C:14-2a(4) (rape committed while armed with a weapon or object fashioned to lead the victim to believe it to be a weapon, the use of which is threatened) and was sentenced to twelve years in prison with a five-year parole disqualifier. His conduct was once more found not to be repetitive and compulsive, and he was again found ineligible for treatment at the ADTC. At the time of both incidents S.H.A. was an active abuser of drugs and alcohol, and had been such for many years. He claims, among other things, that both crimes were committed while under the influence of narcotics.
Prior to S.H.A.'s commission of these sexual assaults, he had an adult criminal history characteristic of a drug addict that included convictions for possession of marijuana, entering with intent to steal, larceny, theft, receipt of stolen property and burglary. The sexual assaults constituted S.H.A.'s first known crimes of violence. [Slip op. at 3-4 (footnote omitted).]
Although S.H.A. pled guilty to the 1986 and 1995 crimes, he consistently declared his innocence until 2005, when he admitted to digital and penile penetration of the seven-year-old child. During an interview in 2005, he also admitted to the State's examining psychiatrist, Pogos Voskanian, that the 1995 encounter was a rape, although he had previously maintained that it was consensual.
A petition seeking S.H.A.'s involuntary commitment as a sexually violent predator was filed on April 23, 2003, and as we have previously stated, a hearing was conducted on August 11, 2003 that resulted in his commitment. Upon appeal, we remanded the matter for a new hearing based upon competent evidence in an unreported decision issued on April 29, 2005. That second hearing finally occurred in January 2006; appellate counsel was assigned on May 2, 2007; and the appeal was scheduled before us on January 24, 2008. As the result of the extraordinary - and in some respects, unjustifiable*fn1 - lapse of time that has occurred, an unusually lengthy record of treatment at the Special Treatment Unit (STU) existed for purposes of review by the experts appearing at the second hearing and for our review upon appeal.
The second hearing commenced on January 6, 2006. At that time, testimony was provided by psychologist Manuel Iser, a member of the STU's Treatment Progress Review Committee (TPRC), who testified regarding the TPRC's December 1, 2004 recommendations for S.H.A.'s treatment, based upon evaluations completed at that time demonstrating little acknowledgment by S.H.A. of his crimes and little progress in treatment.*fn2 A continuation of entry-level, Phase Two treatment was recommended. Following appearances for the State at the hearing by psychiatrist Voskanian and psychologist Robert Carlson, whose testimony we will discuss later in this opinion, the hearing was adjourned to January 27, 2006 to permit the TPRC to conduct an additional yearly review of S.H.A.'s treatment history and prognosis, to permit an in-person interview of S.H.A. by psychiatrist Voskanian,*fn3 and to permit testimony to be offered regarding treatment team structure and Dr. Voskanian's place in that structure.
At the hearing on January 27, psychologist Brian Friedman, also a TPRC member, testified regarding the TPRC's new evaluation and report, generated on January 24, 2006, which was based upon an in-person interview with S.H.A., as well as interviews with members of his treatment team and a review of records. Dr. Friedman testified that S.H.A.'s participation in treatment remained minimal, and that his progress in the course of the prior year had been primarily in the area of substance abuse, with little progress in the area of sex-offender specific treatment. The TPRC was of the opinion that S.H.A. should remain in Phase 2.
As we stated previously, in addition to testimony by the TPRC members, on January 6, the State called as a witness psychologist Robert Carlson, who had interviewed S.H.A. both in 2003 and in 2005. Dr. Carlson diagnosed S.H.A. as suffering from an impulse control disorder, polysubstance dependence in institutional remission, and an antisocial personality disorder. He also found a possibility of paraphilia, but with little evidence to support it. Although test results suggested that S.H.A. was mildly mentally retarded, Dr. Carlson found that he did not meet the diagnostic criteria for that condition because of the high level of his functional abilities. Dr. Carlson concluded on the basis of testing, record review, and interviews with S.H.A. and his treatment providers that, if released at the time, S.H.A. would pose a substantial risk for sexual reoffense, and that he would benefit from further treatment. The doctor described S.H.A.'s progress in treatment to date in the following terms:
[The four treatment providers interviewed by Dr. Carlson] say he attends consistently, but that it's like pulling teeth to get him to participate in a spontaneous way. They say when he's confronted or directly questioned about things that he will respond. Occasionally he gives feedback to others and that would be on a more spontaneous basis, but it's - it's not when things are directed towards him. He seems to be a little bit defensive and I think it was best summed up by one treatment provider by saying that [S.H.A.] does enough to get by.
Psychiatrist Voskanian, who testified on both hearing days and interviewed S.H.A. in the interval between them, diagnosed S.H.A. as suffering from paraphilia, not otherwise specified (NOS), based on his history of sexual offenses and lack of appreciation of sexual boundaries. He found that pedophilia needed to be ruled out as the result of S.H.A.'s admission that he must have been attracted to his seven-year-old victim. The doctor also found polysubstance dependence with "enforced abstinence," an impulse control disorder by history, and an antisocial personality disorder. Dr. Voskanian, like Dr. Carlson, regarded S.H.A. to be at high risk for reoffense. He testified:
Well, if somebody does not see sexual boundaries, if somebody does not have empathy towards the victim, if somebody also uses drugs which dis-inhibits him, if somebody, in addition, has a problem with controlling impulsivity and anger and somebody whose anger can be manifested in sexually-acting behaviors, that would - and in conjunction with high actuarial scores, that would clearly predispose the individual for future sexual crimes.
Like other evaluators, Dr. Voskanian found S.H.A. to have made little progress in treatment, having failed to take responsibility for his offenses, to have explored why he committed them, or to have developed strategies for avoiding reoffense. When asked whether S.H.A. suffers from a mental abnormality or personality defect that affected him emotionally, cognitively, or volitionally so as to predispose him to commit sexual offenses, the doctor responded, "yes," explaining:
Well, we have different components here. We have somebody who is impulsive, angry, has a significant history of drug use which was not effectively treated; who also, when angry, can take out his anger or frustration in a sexual way; who cannot refrain from impulsivity; who does not - really cannot control himself. If he thin[k]s that doing something to a seven-year-old is wrong and he is doing it and he's not interested to understand why he is doing it, he just acknowledges, yes, he molested the girl, but no further interest in understanding that, so a combination of these components I think creates a high risk.
Psychologist Paul Fulford, who testified on S.H.A.'s behalf at the hearing held on January 27, diagnosed him with polysubstance abuse, impulse control disorder, NOS, mild mental retardation by history, and an antisocial personality disorder. He did not find paraphilia, determining that S.H.A.'s offenses were "episodic" and not part of a deviant arousal pattern. Significantly, Dr. Fulford found S.H.A. to have only "minimal insight" into his offenses and found his progress in treatment to be only "fair." However, Dr. Fulford excused S.H.A.'s lack of progress as being the result of his low intelligence. Further, the doctor did not find that S.H.A. met the criteria for commitment under the Sexually Violent Predator Act, because the doctor did not diagnose him as suffering from a sexual disorder.
Following an extended review of the testimony provided at the two days of hearing, the records supporting the experts' testimony, and applicable law, Judge Freedman, concluding that the doctors called by the State were more credible than Dr. Fulford, determined that the State had demonstrated "by more than clear and convincing evidence" that, regardless of whether or not he suffers from paraphilia, S.H.A. "suffers from a mental abnormality in the form of an impulse control disorder and substance abuse and dependence" and "that he has a serious antisocial personality disorder" that continued to manifest itself, despite S.H.A.'s increasing age. The judge found further that S.H.A.'s "record shows that his personality disorder and his other diagnoses predispose him to engage in acts of sexual violence" and that "[h]e's highly likely to continue engaging in his criminal activity if he were to be released." Indeed, the judge concluded that S.H.A. would likely commit a sexual offense "almost immediately" if he were to be discharged and "certainly" within the reasonably foreseeable future. Commitment to the STU was therefore ordered.
Our review of the record in this matter satisfies us that the judge's determination to commit S.H.A. met the statutory requirements of the SVPA, that the evidentiary failings that we recognized in our initial opinion in the matter were remedied, and that the judge did not abuse his discretion in ordering S.H.A.'s commitment under N.J.S.A. 30:4-27.32 and the standards articulated by the Court in In re Commitment of W.Z., 173 N.J. 109, 125-32 (2002). See also In re Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). In this regard, we note that in reaching his determination, the judge did not rely on disputed evidence of S.H.A.'s paraphilia, but instead founded his conclusions on the undisputed determinations of all testifying experts that S.H.A. suffered from an impulse control disorder, polysubstance dependence and an antisocial personality disorder that had not been adequately addressed by S.H.A. through any sort of active participation in treatment; that S.H.A. had not fully acknowledged his crimes; and that he had not developed mechanisms to avoid a repetition of his criminal conduct. While it appears true that S.H.A. has not engaged in unlawful sexual contact since his incarceration for the 1995 crime, that circumstance can be readily explained by S.H.A.'s continuing custodial status. On appeal, S.H.A. can point to nothing else that would suggest either that he did not previously engage in prior illegal sexual behavior or that the triggers for a repetition of that behavior have been successfully eliminated.
S.H.A. has challenged this determination, in part, by arguing that N.J.S.A. 30:4-27.30(b) requires, as a precursor to commitment, testimony by a psychiatrist on S.H.A.'s treatment team, and by asserting that Dr. Voskanian did not fulfill that role. In order to address this contention, the State called as a witness at the January 27, 2006 hearing the STU's Director of Psychology, Merrill Mahne, M.D., who explained that in accordance with guidelines promulgated by the American Psychological Association, applicable to forensic psychologists, the STU distinguished between treating and evaluating physicians, calling only the latter to testify at SVPA hearings, so as to provide a more accurate evaluation of the committee's condition and progress and to avoid conflicts of interest that might arise from assuming both a treating and evaluative role. Nonetheless, Dr. Mahne testified that an examining psychiatrist such as Dr. Voskanian remained a member of the committee's treatment team, as did members of the TPRC who evaluated the committee's record and progress.
In his decision in the matter, Judge Freedman summarized Dr. Mahne's testimony and then held:
I'm satisfied with that testimony and I think that the purpose . . . of the statute is to make sure that you have someone who is familiar with the person here testifying . . . with regard to commitability. And I think that there's no question that the experts here do, in fact, familiarize themselves completely with the persons that they're dealing with as a general proposition. And in particular in this case, I think Dr. Voskanian did so, as did Dr. Carlson.
I don't believe that there's any basis to argue that the case somehow should be dismissed because that portion of the statute which requires . . . a psychiatrist on the treatment team to testify has been violated.
We agree with the judge that the testimony provided in this case by Dr. Voskanian met the requirements of N.J.S.A. 30:4-27.30(b) and his status fit within the definition of "treatment team" in N.J.S.A. 30:4-27.26, which includes "individuals, agencies or firms which provide treatment, supervision or other services at a facility designated for the custody, care and treatment of sexually violent predators." (Emphasis supplied.) See In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 25-26 (App. Div.), certif. denied, 188 N.J. 492 (2006) (finding statutory requirement met on similar evidence of employment).
We are further satisfied that the reliance by the experts on documents reflecting S.H.A.'s offense history and actuarial instruments designed to determine his risk of reoffense, along with personal interviews and other evidence, was proper. See In re Commitment of R.S., 173 N.J. 134, 137 (2002); In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 93-97 (App. Div. 2007), certif. granted, 193 N.J. 222 (2007); In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 611-14 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). We conclude, as well, that the judge appropriately confined his document review to a determination of whether those documents provided an adequate foundation for the opinions of the experts who testified at the hearing. J.M.B., supra, 395 N.J. Super. at 96; In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 224 (App. Div. 2007).
S.H.A. has also raised constitutional objections to his commitment, claiming a deprivation of substantive and procedural due process and equal protection under the federal and state constitutions. However, as the State points out, these arguments were not raised before Judge Freedman, and we decline to consider them. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). We note only that the constitutionality of the SVPA has withstood similar challenges in State v. Bellamy, 178 N.J. 127, 137-40 (2003) (holding civil commitment under the SVPA not to be a penal consequence of an admission of guilt); W.Z., supra, 173 N.J. at 121-33 (rejecting challenges based on deprivation of substantive due process); J.M.B., supra, 395 N.J. Super. at 97 (finding involuntary commitment under the SVPA not to be punitive); T.J.N., supra, 390 N.J. Super. at 225 (holding commitment proceedings are not part of a criminal prosecution giving rise to confrontation clause protections); In re Commitment of G.G.N., 372 N.J. Super. 42, 46 (App. Div. 2004) (rejecting claim of right to jury trial and level of proof applicable in criminal proceedings), habeas corpus denied sub. nom., Neely v. Hayman, 2007 U.S. Dist LEXIS 67283 (D.N.J. 2007); J.H.M., supra, 367 N.J. Super. at 605-11 (rejecting challenges based upon right to a jury trial and to commitment only on proof beyond a reasonable doubt and upon the allegedly punitive nature of the SVPA).