November 19, 2009
HARRY DE LA ROCHE, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 21, 2009
Before Judges Sabatino and Newman.
Appellant Harry De La Roche, serving four concurrent life sentences for murdering four of his family members in 1976, returns to this court a fourth time, following the respondent State Parole Board's most recent denial of parole to him on August 22, 2007, and the setting of a Future Eligibility Term (FET) of 120 months on February 20, 2008, to run from the date parole was denied.
The relevant background is amply set forth in our prior opinions of March 19, 2003 (No. A-2138-01), September 28, 2005 (No. A-6652-03), and May 12, 2006 (No. A-6024-04). Suffice it to say, after returning home for Thanksgiving break from his freshman studies at the Citadel Military Academy in November 1976, appellant shot and killed his parents and his two younger brothers at the family residence. After confessing his crimes to the local police, appellant was convicted in 1978 of all four murders. He was sentenced under former Title 2A to four concurrent life sentences.
Since his arrest in 1976, appellant has been continuously incarcerated for the past thirty-three years. Throughout his incarceration, appellant has failed to acknowledge killing his parents and his younger brother, asserting instead that all three had been shot by his other brother, who appellant claims to have shot in retaliation.
When appellant first became eligible for release in May 2002, the Board denied him parole and imposed a ten-year FET term. In March 2003, we remanded that disposition to the Board. De La Roche v. N.J. State Parole Bd., No. A-2138-01 (App. Div. Mar. 19, 2003). We did so because the Board had denied parole based upon appellant's continued failure to accept full responsibility for his family members' deaths, without the Board having competent expert proof demonstrating that appellant's lack of insight placed him at substantial risk for re-offense. Id. at *6.
On remand, the Board arranged an evaluation of appellant by a clinical psychologist, Leland Mosby, Ed.D., which was conducted over four days in May and June 2003. Dr. Mosby concluded that appellant has never addressed the latent psychological problems of anger, rage, repression, and denial connected to murdering his family. Dr. Mosby opined that appellant, if paroled, would be prone to commit further acts of violence if he were confronted with similar stressors. Based upon Dr. Mosby's negative assessment, the Board reaffirmed its prior denial of parole, and appellant sought further review from this court.
Meanwhile, as the result of earning certain credits on his ten-year FET for good behavior within the institution, appellant again became eligible for parole consideration in 2004. The Board arranged another psychological evaluation of appellant, this time by Dr. Kevin Amory, a psychologist, in September 2004. Dr. Amory found that appellant's psychological problems, which were identified by Dr. Mosby, persisted, and he opined that appellant, who continued to blame others for his misdeeds, had "a significant lack of insight into his behaviors and motivations," and was "under-reporting psychopathologies to an extreme degree." Dr. Amory concluded that appellant remained "a poor to below-average risk for parole," predicting that "unless [appellant] becomes willing to deal with the scope of his emotional problems, [he] may have a significantly difficult time with living independently."
Following Dr. Amory's evaluation, two-member and three-member Board panels successively denied appellant parole, and imposed a new five-year FET. The full Board affirmed the five-year FET extension in June 2005, and appellant filed an appeal concurrent with his still-pending appeal of the remanded ten-year FET from 2003.
On September 28, 2005, we affirmed the Board's post-remand decision from 2004, determining that Dr. Mosby's unfavorable 2003 psychological evaluation of appellant supplied the Board with an ample basis to deny parole and to reaffirm the ten-year FET. De La Roche v. N.J. State Parole Bd., No. 6652-03 (App. Div. Sept. 28, 2005). In our opinion, we emphasized the substantial expertise of the Board in parole decisions. Id. at *2; see, e.g., In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd., 135 N.J. 306 (1994).
The current scenario replicates, in large measure, what has previously transpired. Appellant continues to insist that he only shot and killed his brother, Ronald, upon learning that Ronald had killed their mother, father, and younger brother, Eric. Appellant remains compliant within institutional rules while incarcerated. Dr. Amory interviewed appellant on April 19, 2007, for an in-depth psychological evaluation. Dr. Amory found appellant's comments "suggest a tendency towards rationalization of his behavior" when referring to his past deviant behavior. According to Dr. Amory, appellant is "somewhat immature," "lacks insight into his behavior and motivations," and has not "fully developed effective coping skills needed to deal with the challenges of everyday life." While appellant may be able to function in a highly structured and supervised environment, "[i]mpulse control problems may arise in a less structured environment."
Dr. Amory recognized that appellant had participated in a variety of behavioral programs. Nonetheless, appellant appeared to lack understanding of "how to incorporate the information . . . into his everyday life." Dr. Amory, based on appellant's presentation and testing results, was of the view that appellant was a poor to below average risk for parole.
The full Parole Board denied parole, satisfied that its decision was based upon a determination by a preponderance of the evidence that there is a substantial likelihood that appellant would commit a crime if released on parole. N.J.A.C. 10A:71-3.18(f).
In setting the 120 month FET, the full Parole Board rendered a twenty-six page decision. Appellant appeared before the full Board for the first time and was questioned by the Board members. Appellant's responses, in a number of instances, demonstrated that his explanations, which distanced himself from the murders of all four family members, were not plausible. Appellant's refusal to accept responsibility for the deaths of his entire immediate family continued to confound him emotionally. Appellant was still attempting to retry his case by noting minor discrepancies to prove his innocence. Appellant seemed unreceptive to identifying the issues he faced. So long as he refrained from properly addressing the issues for himself through extended treatment, it was "unlikely that [he] will meet the statutory standard for parole."
The full Board was well aware that the previous FETs imposed on appellant "were progressively less." However, in view of his presentation before the full Board, a sufficient basis for the 120 month FET was formed.
On appeal, appellant raises the following points for our consideration:
THE DECISION TO DENY PAROLE WAS ARBITRARY AND CAPRICIOUS.
THE BOARD CANNOT RELY ON INACCURATE INFORMATION TO MAKE THEIR DECISION.
ANY ARGUMENT THAT THE BOARD CAN SUBSTANTIALLY REDUCE THE LENGTH OF THE FET THROUGH ANNUAL REVIEWS IS MISLEADING.
MY RECORD SHOWS THAT I AM NOT LIKELY TO COMMIT A CRIME WHEN RELEASED.
THE BOARD DID NOT FOLLOW THEIR OWN REGULATIONS AND STATE RULES AND LAWS.
THE BOARD DID NOT JUSTIFY IMPOSING A 10 YEAR FUTURE ELIGIBIITY TERM (FET).
THE BOARD INCORRECTLY CALCULATED THE START DATE OF THE FET.
THE BOARD'S INACTION CAUSED GREAT HARM.
We need not address the points specifically because they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Appellant's primary argument is that the FET of 120 months is not supported by substantial credible evidence in the record. This is the point underscored by the descending order of FET in the past three parole hearings from fifteen years, to ten years, and to a five-year FET. Appellant contends that the only reason for the denial of parole and an increase in the FET is his refusal to admit to killing all four family members.
In our decision of March 19, 2003, we indicated that the failure to admit to all the murders may be a legitimate consideration by the Parole Board, but that the "implications on the standard of review are not self-evident and are no where to be found in the present record." We went on to say:
[l]ogically, the consequence of defendant's failure to admit guilt, in light of the nature of his crimes, his lack of prior criminal involvement, and his otherwise apparent rehabilitation, is a matter for expert psychological analysis. If there is linkage between De La Roche's failure to admit full guilt and probable recidivism, it should be established through medical expertise. Although the substantial likelihood of recidivism is a fact question, it is a fact question that on occasion must be informed by expert evidence. The proposition that anyone who does not admit guilt must be a likely recidivist, is a non sequitur. It simply carries no force of logic in and of itself, at least not on the present facts.
Here, the full Board had the benefit of a psychological evaluation by Dr. Amory of April 19, 2007. Dr. Amory found appellant's "defensive nature, coupled with his self-esteem issues in coping, may affect his ability to react appropriately to the challenges of everyday life." Dr. Amory was of the view that he "may be able to function adequately in a highly structured, highly supervised living situation," but in a less structured environment, problems may arise. As a consequence, Dr. Amory viewed defendant as having significant emotional problems, despite having taken a variety of behavior programs. In Dr. Amory's view, appellant lacks the understanding to incorporate what information he has learned into his everyday life.
Dr. Amory's evaluation informed the Parole Board and led it to conclude that there was a substantial likelihood of recidivism. Indeed, in establishing the 120 month FET, the Board based its decision on defendant's insufficient problem resolution, specifically grounded on his lack of insight into his criminal behavior and his denial of crime. In its decision, the panel of the Board recommended that appellant consider participating in one-to-one counseling. According to appellant, one-to-one counseling is not available to him. There is a question of whether appellant is eligible to receive one-to-one counseling based on his status in prison. If it is not available because of his status, it should be made available to him since it is the Board's recommendation, if he is willing to participate. Otherwise, the Board is not providing him with an opportunity for problem resolution, which appears to be the primary basis for denying parole and imposing a 120 month FET.
On the present record, we are satisfied that the Parole Board has carried its burden by a preponderance of the evidence to establish that appellant presently poses a substantial likelihood he would commit another crime if released on parole and that the imposition of a 120 month FET was well-grounded.
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