January 2, 2009
IN THE MATTER OF THE CIVIL COMMITMENT OF R.D. SVP-03-99
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-03-99.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 8, 2008
Before Reisner and Sapp-Peterson.
R.D. appeals from a June 25, 2008 order continuing his commitment to the Special Treatment Unit (STU), with a future review date of April 14, 2009, pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38.*fn1 We affirm, substantially for the reasons stated by Judge Freedman in his comprehensive oral opinion placed on the record on June 24, 2008.
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.
[T]he State must prove that 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," 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 the Matter of the Commitment of J.H.M., 367 N.J. Super. 599, 610-11 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004). After thoroughly reviewing the record, we are satisfied that the State has met its burden in this case.
R.D. was convicted of rape in 1969. He was paroled from the Adult Diagnostic and Treatment Center (ADTC) in August 1978. However, despite his years of apparently successful treatment at the ADTC, he committed two more rapes less than a year after his release. After serving an additional nineteen years for armed rape, robbery and threat to kill, he was committed to the STU in October 1999.*fn2 While at the STU, R.D. had a history of refusing treatment until 2000, and had multiple institutional infractions including actual or threatened assaults on corrections officers. We affirmed R.D.'s continued commitment to the STU following a hearing in 2002. In re Civil Commitment of R.L.D., Docket No. A-1588-02 (App. Div. Nov. 18, 2005).
Prior to the May and June 2008 hearings giving rise to the current appeal, R.D. was evaluated by Dr. Pogos Voskanian. He initially refused to speak to Dr. Voskanian in April 2008 but agreed to be interviewed in May 2008. R.D. was also evaluated by his own expert, Dr. Jeffrey Singer. He refused to appear before the Treatment Progress Review Committee at the STU. At Judge Freedman's direction, the State also presented testimony from one of R.D.'s treating psychologists.*fn3
According to Dr. Ronald Gonzalez, R.D. had been participating since November 2007 in a treatment group run by Dr. Gonzalez. The first five months in this process group were spent "primarily rapport building" by allowing R.D. to discuss his treatment history and to let him vent about "perceived injustices" in the institution. Dr. Gonzalez testified that in the past month prior to the hearing, R.D. had begun to make progress. He had taken the floor four times in April 2008, and had discussed two of his sex crimes, as well as other significant issues. In that month, R.D. had also begun to "[get] away from the . . . victim-of-the-system type of issues" and focus "on what he needs to discuss in group." Dr. Gonzalez testified that R.D. was currently in Phase-2 of his treatment, but that if he continued to make the kind of progress he had demonstrated recently, Dr. Gonzalez would probably recommend that he be moved to Phase-3 at his next six-month evaluation.
The State next presented testimony from Dr. Rosemary Stewart, a psychologist who was a member of the STU Treatment Progress Review Committee (TPRC). The TPRC reviews the resident's records, speaks with treatment providers, interviews the resident (an opportunity R.D. declined), and makes a recommendation as to the resident's phase of treatment or possible release. The TPRC recommended that R.D. be continued in Phase-2, because R.D. had refused treatment for a portion of the year preceding the TPRC review and had not worked productively when he attended his groups:
It was a very mixed picture. He did attend his treatment orientation group consistently, but the content of his participation was generally to discuss victim-of-the-system issues. While he did at times give insightful feedback to others, he did not discuss his own dynamics, he did not discuss his crimes. . . . [H]e has been resistant . . . to completing some of the basic programmatic requirements such as his sexual history questionnaire and he doesn't participate in self-help groups.
Like Dr. Gonzalez, Dr. Stewart noted R.D.'s very recent progress in therapy but "it's only been one month out of the 12-month period." He had previously been promoted to Phase-3 but was demoted in 2006 to Phase-2. She also indicated that although R.D. has a history of substance abuse problems, he had resisted taking a substance abuse module because of conflicts with a treatment provider.
According to Dr. Stewart, R.D. had also been diagnosed with personality disorder N.O.S. with anti-social features, and paraphilia N.O.S. non-consent, conditions which "tend to be enduring, long-lasting patterns of behavior . . . that persist over time." She testified that in order to progress back to Phase-3, R.D. needed to "engage" in therapy "on a consistent basis" and take additional modules including Substance Abuse and Relapse Prevention. On cross-examination, Dr. Stewart agreed that the diagnosis of paraphilia was based on the history of R.D.'s criminal conduct as opposed to his conduct while at the STU. She also agreed that he had no disciplinary infractions in the current evaluation period.
The State next presented testimony from Dr. Voskanian, a psychiatrist. Dr. Voskanian reviewed R.D.'s offense and treatment history, and interviewed him for two hours.*fn4 According to Dr. Voskanian, R.D.'s long history of violent rapes, committed when he was out on bail or parole, indicated that "he cannot be successfully supervised" when released. The fact that he committed more rapes after apparently successful treatment at ADTC indicated "[t]hat his presentation and appearance that he may be doing well does not really amount to practical improvement and ability to control self."
Dr. Voskanian also concluded based on R.D.'s behavior while in the STU that [R.D.] remains oppositional, defiant, angry. [He] sees himself as the victim of the system. He can easily become verbally assaultive with staff. . . . he still seeks control. . . . He wants to have everything . . . the way he wants to. And these are the dynamics that are involved with his sexual offenses. . . . because the rapes are also done for control. Regular sex was not satisfactory, It had to be rape, it had to be control, it had to be over-powering others. And the dynamics, same dynamics continue up [to] today.
Dr. Voskanian also addressed R.D.'s unrealistic belief that he had "zero" chance of relapse if released, despite his failure, until recently, to engage in treatment.
Dr. Voskanian diagnosed R.D. as having "paraphilia N.O.S. based on rapes, non-consensual sexual activity that he needs to engage in . . . to get his fulfillment." He also diagnosed poly-substance dependence, as well as personality disorder with anti-social and borderline traits. He explained that R.D. needed to continue with substance abuse groups even if he had no current access to drugs or alcohol, because the substance abuse was related to R.D.'s sexual offending, and he would have access to drugs and alcohol once he was released. Based on R.D.'s conduct over the past year, and his lack of progress in therapy, Dr. Voskanian opined that R.D.'s disorders continued to cause R.D. to have serious difficulty in controlling his sexual behavior and continued to create a high risk that he will re-offend if released.
In response, R.D. presented expert testimony from Dr. Singer, who had performed a forensic psychological evaluation of R.D. Dr. Singer stressed that his evaluation was primarily based on, and gave greater weight to, R.D.'s current conduct as opposed to his behavior from decades past. However, Dr. Singer did review R.D.'s past sex offense history, and R.D.'s history of service in Vietnam during which he committed atrocities, allegedly at the direction of his commanding officers. Dr. Singer believed that R.D. had benefited from his treatment at the ADTC and STU, because he was now able to express remorse for his crimes and sympathy for his victims. He concluded that R.D. had "reached a maximal therapeutic benefit from in-patient treatment for sex offender specific psychotherapy." He also did not believe that R.D.'s demotion in 2002 from Phase-4 to Phase-2 was "indicative of a paraphilia that would drive him to commit sex offenses" but rather was based on R.D.'s "difficulties getting along with others" and "fighting the system."
Based on his testing of R.D. and R.D.'s responses to polygraph testing by STU staff, Dr. Singer opined that R.D. had anti-social personality disorder but not paraphilia. In other words, he did not suffer from a "true, active, percolating, salient, deviant pattern of sexual arousal." He also opined that R.D. did not currently have "a psychological disorder or psychiatric disorder, a mental illness, or a mental disorder . . . or a personality disorder that predisposes him to commit . . . acts of sexual violence." He explained that R.D.'s anti-social personality disorder did not predispose him to commit sexual violence, because the condition was not "driven by sexual arousals that are deviant." Also, R.D. was currently fifty-eight years old, and the recidivism rate for older offenders was statistically low.
Dr. Singer testified that R.D. would "be an ornery, argumentative, oppositional guy for the rest of his life," but that did not mean he would commit sex offenses if released. However, on cross-examination, he admitted that the "oppositional attitude" would apply to parole officers as well as the STU staff. He also agreed that R.D. was emotionally immature and displayed poor judgment.
In a comprehensive, sixty-seven page oral opinion, Judge Freedman determined that R.D. should continue to be committed to the STU. The judge explained in detail that although he had reviewed all of R.D.'s institutional records, he would not rely upon included hearsay in those records for the truth of the hearsay statements. Rather, he would only consider the past reports in weighing the credibility of the testifying experts who relied on those reports in formulating their opinions.
The judge reviewed R.D.'s recent progress reports in great detail, from 2006 forward, noting his persistent lack of cooperation with therapy. The judge concluded that "a review of these documents, his treatment records, . . . clearly supports the view of some of the experts here that [R.D.] has really been doing nothing." He acknowledged Dr. Gonzalez's testimony that R.D. had very recently begun actively participating in his process group, but the judge also considered R.D.'s refusal to be interviewed by the TPRC.
The judge placed considerable weight on the opinions of Dr. Stewart and Dr. Voskanian, but did not find Dr. Singer to be a credible witness. The judge was not convinced by Dr. Singer's explanation that R.D. no longer suffered from paraphilia, and concluded that Dr. Singer placed undue weight on the fact that R.D. passed a polygraph test concerning his sexual fantasies over the past six months. He also concluded that Dr. Singer unduly minimized the role R.D.'s anger played in his sexual offending and the potential for relapse if R.D. did not have this aspect of his personality under control. The judge concluded that R.D. continued to present a high risk of re-offending if released:
I'm satisfied to find by clear and convincing evidence that despite the long passage of time, which is very, very distressing to the court and discouraging to the court, as well, [R.D.] when he ran into some problems back in 2002, instead of trying to deal with the problems and to continue his treatment, as he said, he decided not to constrain himself, and let his personality just be his personality, and that's what it's been for the last four or five years.
Last month, that is the month of April , perhaps he's decided he better change his ways and maybe there's been a breakthrough. I've seen people here engage in denial for many years. And then all of a sudden, breakthrough the denial and engage in treatment. I don't think we have denial here. We just have . . . characterological problems severely interfering with the ability to engage in treatment.
So, I'm satisfied to find by clear and convincing evidence that [R.D.] does have a mental abnormality in the form of a paraphilia. It has not gone away. It will not go away. It can only be controlled by successfully engaging in treatment. And in addition . . . he has a personality disorder[,] . . . whether it's an antisocial personality disorder, as diagnosed by Dr. Singer . . . or a personality disorder N.O.S. with anti-social and narcissistic features, as diagnosed by Dr. Voskanian . . . those two diagnoses in conjunction with one another are a robust predictor of future recidivism. . . . And . . . I'm satisfied to credit Dr. Voskanian's view that if he were released, he would have serious difficulty in controlling his sexually violent behavior to such a degree that he would be highly likely to engage in such conduct within the reasonably foreseeable future.
On this appeal, our review of Judge Freedman's decision is "extremely narrow," and we must defer to the trial court'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). See also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). Having reviewed the record, we find no basis to disturb Judge Freedman's factual and legal conclusions, including his cogently-explained credibility determinations.
While we acknowledge that R.D. has spent decades at the ADTC and the STU, the record reflects that, in large part because of his refusal to consistently engage in therapy, he has not progressed to the point where he can be released without presenting a high risk of re-offense. We affirm substantially for the reasons stated in Judge Freedman's June 24, 2008 opinion.
Finally, at the request of R.D.'s counsel at oral argument, the parties submitted briefs on whether the judge should have required R.D. to appear at the hearing in leg shackles. R.D. contends that shackling patients during their appearances in the courtroom violates N.J.A.C. 10:36A-2.3, concerning patients' rights. He also relies on State v. Mance, 300 N.J. Super. 37, 50-51 (App. Div. 1997), and State v. Artwell, 177 N.J. 526, 533-35 (2003), although those cases addressed the prejudicial impact of requiring a defendant to appear before a jury in shackles, an issue not present here. Counsel also relies on State v. Zhu, 165 N.J. 544, 557 (2000), requiring that trial judges place on the record the reasons for the need to shackle a defendant and emphasizing the trial judge's obligation to make the final decisions about courtroom security to the extent that security precautions may impact on a defendant's trial rights.
We understand the concerns expressed on behalf of R.D. However, the issue was not properly raised or preserved before the trial judge and we will not address it on this appeal. Most significantly, there is no adequate factual record on which to address the issue. Counsel's effort to rely on the record of a different case before a different judge will not suffice. Nor is the State's reliance on a "policy requiring the use of leg restraints while in the STU courtroom" (for which the State cites neither a regulation nor record evidence) sufficient to permit our review of such a policy. If patients wish to raise this issue, they must first do so before the trial judge, making an appropriate record. Counsel have briefed this issue before us. We perceive no reason why they could not have filed pre-hearing briefs with the trial judge.