September 17, 2010
WILLIAM R. GEIGER, APPELLANT,
NEW JERSEY STATE PAROLE BOARD, RESPONDENT.
On appeal from the New Jersey State Parole Board.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 5, 2010
Before Judges C.L. Miniman and Waugh.
Inmate William R. Geiger (the inmate) appeals from final agency action of the New Jersey State Parole Board (the Board) denying him parole and establishing a future eligibility term (FET) of sixty months from January 21, 2009. The inmate was incarcerated at Southern State Correctional Facility at the time his parole was considered. He is serving a life sentence for murder and has already served a concurrent seven-year sentence for unlawful possession of a weapon. We affirm in part and remand in part.
The inmate and his wife, Nancy, were married in 1973. She filed for divorce during August 1976 and moved into her parents' home. The inmate then began to harass, stalk, and threaten her and her mother. In August 1976, the inmate cornered Nancy in her employer's parking lot as she was leaving work. He placed a gun to her head and threatened to shoot her and then kill himself. He was charged with assault with a dangerous weapon, threat to take a life, and possession of a revolver.*fn1
Because the harassing and stalking behavior became very intense, Nancy's employer gave her a special place to park at work, and she changed her telephone number. Then, on December 25, 1976, the inmate followed Nancy, her mother, and her grandmother to Midnight Mass. He had spent that day drinking heavily, although he claimed he was not intoxicated at the time of the crime. Unable to speak with his wife after Mass, the inmate followed Nancy and her family to their home. Once there, Nancy and her grandmother noticed her husband's presence. While Nancy's mother got out of the car and into their house, Nancy and her grandmother remained in the car. The inmate went into the garage, entered the car where Nancy was sitting, fired five shots at her, reloaded his gun, and then fired two more rounds. She died almost instantly of bullet wounds to her head, chest, heart, lung, and brain.
During the investigation, the inmate claimed that he went to the church assuming that Nancy would be there. While trying to talk to her after services, she left with her mother and grandmother. He admitted that he followed them home and claimed that he killed his wife while he was in a "disassociated state." He also asserted that he "lost control" when Nancy's father allegedly took a swing at him with a broom or hoe when he tried to enter the garage.
When the police responded to the scene, the inmate was walking across the lawn from the garage area with his hands on top of his head. He dropped a revolver when the police ordered him to do so. The inmate was then arrested. He made bail on June 8, 1977, and two days later absconded. He was arrested again on June 29, 1977, in Daytona Beach and returned to New Jersey to stand trial.
The inmate was found guilty of murder and unlawful possession of a revolver and was sentenced on December 9, 1977, at which time he was thirty years old. We affirmed his conviction and sentence, and certification was denied by the Supreme Court. State v. Geiger, No. A-1879-77 (App. Div. Apr. 22, 1980), certif. denied, 85 N.J. 113 (1980) (Geiger I). In all, he has been considered for parole on four prior occasions, to wit, in 1991, 1996, 2003-04, and 2006. Prior FETs established after parole was denied the first four times were ten years in 1991; twelve years in 1996; five years in 2003-04; and five years in 2006.
The inmate appealed the 1996 denial of parole establishing a twelve-year FET. Geiger v. N.J. State Parole Bd., No. A-0483-99 (Mar. 21, 2001), certif. denied, 169 N.J. 606 (2001) (Geiger II). Initially, we remanded for reconsideration in light of Trantino v. New Jersey State Parole Board, 154 N.J. 19 (1998) (Trantino IV),*fn2 "which set forth the test for parole fitness on Title 2A offenders as to whether there was a 'substantial likelihood the inmate will commit a crime if released on parole.'" Geiger II, supra, slip op. at 1-2. We noted that Trantino IV clarified that rehabilitation was relevant "only as it bears on the likelihood that the inmate will not again resort to crime" and that it "need not be total or full or real rehabilitation in any sense other than there is no likelihood of criminal recidivism." [Trantino IV, supra, 154 N.J.] at 31; see also [(Trantino VI), supra, 166 N.J. at 197].
In its initial decision the Parole Board found there was a "substantial likelihood" that Geiger would commit a crime if in fact released on parole based on the horrendous nature of the offense, the failure of the defendant to acknowledge his gambling problems, his projection of responsibility for his wife's death on her family, and his reluctance to participate in a halfway house program and in the annual review process. Following our remand, the Board reiterated these findings as well as its conclusion under Trantino IV of a substantial likelihood that Geiger would commit a crime if released on parole. [Geiger II, supra, slip op. at 2.]
We then concluded that the Board's decision was neither arbitrary nor capricious and was supported by substantial evidence. Ibid. As a consequence, we affirmed. Ibid.
The inmate became eligible for parole for the fifth time on August 21, 2008, after serving approximately thirty-one years and five months. Hearing Officer Fernando Torres summarized the inmate's case on June 5, 2008, and referred the matter to a Board panel pursuant to N.J.A.C. 10A:71-3.15(b), due to the serious nature of the offense and the inmate's institutional record of loss of commutation time and confinement in detention on July 20, 1989. The following day, inmate sought the addition of some materials bearing on parole in his pre-parole package. On July 9, 2008, the Somerset County Prosecutor objected to the inmate's parole, and he was provided with a redacted copy of this letter on September 9, 2008.
In the meantime, a two-member Board panel apparently considered the inmate's case on June 23, 2008, denied parole, and referred the matter to the full Board for establishment of an FET. The full Board also denied parole on August 13, 2008, explaining that parole was denied because the inmate continued to have a lack of insight into his criminal behavior and viewed himself as a victim for the last thirty-two years. He also had a past history of domestic violence. The full Board determined that "a substantial likelihood exists that [the inmate] would commit a new crime if released on parole at this time." In mitigation, the full Board noted that the inmate had no prior criminal record, was infraction-free since 1989, participated in programs specific to his behavior, participated in institutional programs, had average to above-average institutional reports, and minimum custody status was achieved and maintained. The full Board also deferred the matter for establishment of an FET, which it noted could be in excess of administrative guidelines.
On September 13, 2008, the inmate sent a letter of mitigation to the Board in response to the August 13, 2008, denial of parole. He contended that the Board's determination that he lacked insight was not supported by credible evidence and was contradicted by Dr. Dooley's recent in-depth psychological report and risk assessment, which was consistent with the immediately prior in-depth psychological assessment. He pointed out that the Board ignored the three-month reduction he received in early 2008 for "satisfactory progress" that was recommended by a Board panel.
With respect to the issue of the inmate being a victim, he wrote:
In terms of deeming myself as a victim, the Board has conveniently contorted the question posed by Ms. Washington to their favor. Play your tape back[.] When I responded to her question I was indeed a victim in terms of the Focus on the Victim textbook definition. I had discussed this matter with Chaplain Crossland, our institutional facilitator of the Focus on the Victim program. The Board can not [sic] deny Nancy was my wife, legally, and falls into the category of secondary victims. [See attached F.O.V., Chapter 1, page 4, Victims]. A further investigation of the Board's definition of "victim" in a murder/manslaughter case means the nearest relative, e.g. spouse, of the victim. N.J.A.C. 10A:71-3.48(b) & (c). As I have frequently attested in prior bearings conducted by the Parole Board, I have personally grieved Nancy's loss since 1976 and have been psychologically impacted with her death. I have continued utilizing counseling (Individual Counseling) and various programming (Focus on the Victim and Moral Reconation [sic] Therapy) during this last cycle to acquire a better understanding into my past criminal behavior. There is absolutely no justification to use the victim factor either to deny me parole nor issue a future eligibility beyond the normal guidelines.
The inmate then turned to the issue of a "past history of domestic violence" and argued as follows:
Lastly, I candidly explained to the Board and psychologists [that] domestic violence was a part of my family upbringing. I recited in textbook fashion my learnings of the "cycle of violence," which surprisingly Ms. Washington commended on. I have participated and studied chapters regarding domestic violence in both Moral Reconation [sic] Therapy and Focus on the Victim. I utilized the information acquired in these classes to reach deeper into a more personalized discussion with Doctor Boyd during one-on-one counseling sessions. The Board seems uninterested in seeking Dr. Boyd's assessment which was offered during the initial stages of parole hearings. Also, I must remind the Board a bland recitation of 'past history of domestic violence' has no bearing to [sic] likelihood of future recidivism. [Trantino VI], 166 N.J. at 180 (arbitrary and improper). This can not [sic] be a rational basis for denial of parole, nor an enlarged FET.
He concluded by seeking reconsideration of the "matter for parole release." He also sought a reduction of the FET to the presumptive term.
On December 17, 2008, the full Board voted to impose a sixty-month FET and again denied parole because the inmate continued to lack insight into his criminal behavior as demonstrated by the panel interview and documentation in the case file. The same mitigating factors were found. The Board determined that there was a substantial likelihood that the inmate would commit a new crime if released on parole at that time. The Board issued a written decision on January 21, 2009, which the inmate acknowledged receiving two days later.
The Board reviewed the inmate's parole history and personal background as well as the facts and circumstances of the offenses for which he was incarcerated. The Board then recited the discussion at the 2008 parole hearing, including statements by the inmate that "the real root of my problem has always been anger . . . and control"; "my anger is something that just doesn't go away"; "I armed myself because I knew in my heart that it (intended discussion with Nancy) was going to fail"; and, among other statements, "I had a deep-seated anger for [my in-laws]."
As to his anger, he admitted that he lets his anger control his behavior when he should be controlling his anger. Further, the inmate admitted that he was an abuser but denied that an abuser was a bully. During this exchange, the inmate's body language, tone of voice, and demeanor changed significantly. The inmate admitted this happened, explaining that "I get frustrated when somebody doesn't agree with my point of view."
Finally, when asked if he believed he was a victim of the events on December 25, 1976, he replied, "I have to sorta pick myself up and find myself through as a victim in this thing, because for thirty-two years I've paid a harsh penalty. I've been placed outside society." Toward the end of the hearing, he said, "I'm at a stage where I'm tired . . . I'm empty, okay . . . I don't have anything to be ashamed of with the exception of the crime itself. The punitive aspect of this sentence has been done." After parole was denied, he said "I don't understand continued incarceration anymore . . . enough is enough . . . thank you very much."
The Board then found that defendant lacked insight into his violent behavior. In pertinent part, the Board noted:
During your many years of incarceration, you have been subjected to a battery of tests and evaluations. Some of the evaluations have been negative, some have been less negative. . . . The Board reviewed and considered all of the professional reports and evaluations submitted in your case and based upon such review, the Board has determined that the evaluations [in] and of themselves did not have a significant impact on the determination to deny parole.
The Board then made specific findings, explaining the basis for its decision to deny parole:
The Board recognizes that in some regards you have made strides in identifying some of the contributing factors that led to the deadly behavior you exhibited on December 25, 1976. . . . However, you still have yet to identify the underlying motivation that caused you to commit the act of murder because you wife wanted a divorce.
A troubling aspect to your case, which you have yet to address, is the fact that your desire to kill Nancy was driven by your competitive nature. She no longer wanted to be your wife and made this point abundantly clear to you. . . . Your efforts were solely egotistical in nature and were not driven by love, devotion and affection for Nancy. This specific aspect of your decision to kill Nancy has yet to be fully explored or considered by you.
Also troubling to the Board is the extent to which you downplay what your intentions were on the day in question. . . . Your claims that you intentions were to talk to Nancy (armed with a fully loaded weapon and with additional ammunition) are highly suspect. Continuing to claim you were going to attempt to "meet and talk to her," turns a blind eye to the fact that you killed Nancy immediately upon confronting her in the car in the garage of her parents' home.
An additional concern to the Board is exactly how good you are at "harnessing your anger." During your current hearing you were asked if you would define yourself as a bully . . . . [You] began talking at a louder confrontational level. When this was pointed out, you became quite confrontational. . . . Of real concern to the Board is that you became visibly disturbed when discussing a topic as innocuous as the definition of the word "bully." Despite your claims that your anger is under control, your reaction calls into question how equipped you currently are at handling and diffusing situations where your opinion or personality differs or clashes with others.
The Board also noted, "In total, you overly emphasized your opinion that you have been incarcerated long enough for the violent crime you committed and that it is elementary that you should be released at this time. By putting forth such an opinion of yourself is narcissistic and self-aggrandizing in nature."
As to mitigating factors, the Board acknowledged the many programs in which he participated since his last parole hearing and noted his average to above average work and housing reports and that he had been infraction free since 1989. The Board also considered the contents of the inmate's letter of mitigation when the Board established another sixty-month FET.
In imposing an extended FET, the Board considered the factors enumerated in N.J.A.C. 10A:71-3.11 and found "the factors supporting the denial of parole, collectively, are of such a serious nature as to warrant the setting of a future parole eligibility term, which differs from the presumptive term of twenty-seven (27) month (- 9 months)." The Board explained:
Based upon a comprehensive review of your entire record, it is clear that you continue to remain a substantial threat to public safety. The focus of the Board's review of your case is to determine the future parole eligibility term that would reasonably be required of an individual with your behavioral history.
The Board believes that after thirty-two (32) years of incarceration you:
· failed to develop adequate insight into your violent personality characteristic. Specifically, although you have come to some understanding as to how anger, rejection and control shaped the poor behavior that you exhibited in both of your failed marriages, you have yet to come to any understanding why specifically your wife Nancy leaving you translated into you decided to end her life; and
· have taken the stance where you overly emphasize that you are of the belief that you have been incarcerated long enough for your heinous and violent offense and that in total you have paid a "harsh penalty" for killing your wife; and
· continue to show signs that call into question how properly equipped you currently are at handling and diffusing situations where your opinion or personality differs or clashes with another.
The Board concluded: "Accordingly, the Board has found that setting any term less than a sixty (60) month future parole eligibility term would be wholly inconsistent with the conclusion that, after thirty-two (32) years of incarceration, you have not shown the requisite amount of rehabilitative progress in reducing the likelihood of future criminal activity."
This appeal followed. The inmate raises the following issue for our consideration:
THE STATE PAROLE BOARD'S FINDINGS AND CONCLUSIONS IN DENYING PAROLE AND ISSUING AN EXTRAORDINARY FUTURE ELIGIBILITY TERM ARE UNSUPPORTED BY SUBSTANTIAL CREDIBLE EVIDENCE IN THE RECORD AND THE DECISION TO DENY PAROLE SHOULD BE VACATED WITH RELEASE ON PAROLE BE ORDERED ACCORDINGLY.
Specifically, the inmate contends that the agency record does not contain a preponderance of evidence to support the Board's conclusion that he "will be substantially likely to recidivate if released on parole." He urges that "there is an ample amount of documented evidence to support" that he has "keen insight" into his crime and the Board's decision is erroneous. He further contends that Drs. Dooley and Gambone intimated to him that they supported his application for parole, but he cannot inspect these confidential reports to determine whether they did so, asking us to review them in camera. He urges that the Board is overlooking or undervaluing this evidence. He also urges that the Board was required to consider his Risk Assessment Score of four, which placed him in the lowest risk category for recidivism, but failed to accord any weight to it.
The inmate further asserts that the Board "blatantly" ignored his one-on-one counseling sessions with Staff Psychologist William Boyd, which was mandated by the Board's December 27, 2006, decision. Although he participated in this counseling for sixteen months, the Board never sought a report from Boyd, yet the Board's decision suggested that he required another five years of such counseling to acquire insight. He contends that "[a] very current evaluation which worked on the problems identified by the Board should carry more weight than that of those more dated," citing Trantino VI, supra, 166 N.J. at 175.
With respect to being a victim of the crime he committed, he contends that the Board "omitted the earlier part of my answer where I state the Parole Board definition of victim, N.J.[A.C.] 10A:71-3.48(b) & (c) would classify me as such." Further, he fell within the definition of secondary victim in the Focus on the Victim textbook. He contends that he has grieved the loss of his wife for more than thirty-two years and is "ashamed it was by my hand that took her life."
As to his statement that the punitive aspect of his sentence was done, he points out that the Supreme Court has determined that the punitive aspect of a sentence under Title 2A is fulfilled upon parole eligibility and the only consideration thereafter is for the Board to determine the likelihood of recidivism, citing Trantino IV, 154 N.J. at 39.
With respect to his confrontational exchange with the Board, the inmate urges that such a confrontation does not "indicate that [the inmate] is substantially likely to recidivate," citing Trantino VI, supra, 166 N.J. at 177. Finally, he contends the Board's findings lack insight and are not supported by the preponderance of the evidence because he has been charge free for over twenty years, and in minimum custody for twenty-five years. Also, he has taken a vast number of institutional programs, had years of individual and group counseling, had above average housing and work reports, and had no prior criminal record. Further, he has an acceptable parole plan and support from his sister, Gale Casey. Also, "I am 62 years old and a changed man from entering prison at age 29. These are facts the Parole Board can not [sic] refute." Finally, he urges that without a likelihood of recidivism, his release must be ordered.
The State responds that the Board "appropriately considered and interpreted the entire record and determined that there was substantial likelihood that Geiger would commit another crime if released on parole and, based on evidence adduced during the parole hearing process, properly denied his parole request and set a sixty-month FET."
Judicial review of parole determinations is limited to an evaluation of whether the Board acted arbitrarily or abused its discretion in rendering its decision.
In addressing the validity of the Parole Board's denial of parole, the judicial role concentrates on three inquiries: (1) whether the agency's action violates express or implied legislative policies, i.e., did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors. Thus, we must first consider whether the Parole Board applied the correct legal standard for determining parole. Then, because the question whether there is a substantial likelihood an inmate will commit another crime if released is essentially factual in nature, we must determine whether the factual finding could reasonably have been reached on sufficient credible evidence in the whole record.
The standard of review is strongly influenced by the fact that the substantive principles governing parole do not confer a constitutional right or entitlement. However, while there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence, there is by statute a protected expectation of parole in inmates who are eligible for parole.
We recognize that Parole Board determinations are highly individualized discretionary appraisals, and, therefore, Parole Board decisions should not be reversed by a court unless found to be arbitrary or an abuse of discretion. Nevertheless, the inherent difficulty in gauging whether a parole determination constitutes an abuse of discretion does not engender a more exacting standard of judicial review than that applicable to other administrative agency decisions. [Trantino IV, supra, 154 N.J. at 24-25 (citations and internal quotations omitted).]
We have accorded agency actions presumptions of validity and reasonableness, In re Vey, 272 N.J. Super. 199, 205 (App. Div. 1993), aff'd, 135 N.J. 306 (1994), and the burden is on the challenging party to show that the Board's actions were unreasonable, Bowden v. Bayside State Prison, 268 N.J. Super. 301, 304 (App. Div. 1993), certif. denied, 135 N.J. 469 (1994) (citation omitted).
We have reviewed the confidential reports of Gregg Gambone, Ph.D., dated March 5, 2006; Gregory Alberts, Ph.D., dated August 1, 2006; and Christopher Dooley, Ph.D., dated April 2, 2008. Gambone opined that the inmate had a low risk of recidivism based on the LSI-R score of fourteen. However, Alberts opined that the inmate had a medium risk of recidivism in intimate or intense interpersonal relationships and a low risk otherwise on the Spousal Assault Risk Assessment (SARA) with a total score of seventeen. Gambone, too, opined that the inmate had a moderate risk of recidivism with an LSI-R score of twenty.
All three psychologists recognized the substantial progress that the inmate had achieved and the programs in which he had participated. Nonetheless, two of them opined that he underreported answers on the MMP1-2 test. One of them expressed a concern over the inmate's difficulty in controlling angry feelings. One listed ten factors elevating the risk of future violence as well as six positive factors. Dooley listed eleven risk factors for success or failure, eight positive or neutral and three clearly negative. Dooley opined that the inmate's judgment was only fair to good because of his anger issues and commented that if paroled, "the offender requires strict supervision with random urine monitoring." Dooley nonetheless opined with respect to the inmate's personality:
This is not atypical and is in the norm for individuals in this situation. There are no indications of any tendencies toward sexual problems or substance abuse. There are also no indications of any serious psychological syndromes or neuroses. This IM, in general, appears to be failry [sic] stable and has a positive attitude in the face of his crime and the amount of time he has served for it. In the interview he presented as having an adequae [sic] amount of insight into his personal [history] and psychological background. He also expressed a reasonable amount of genuine remorse regarding his crime and the effect it has had on everyone involved. He also appears to have a strong desire to be successful on parole and to remain charge free in the future. The IM also seems to have the resources to be successful on parole.
His recommendations were that the inmate "must remain in counseling until the psychologist is confident that he is ready for release and to ensure a good transition into society."
We are satisfied that "the record contains substantial evidence to support the findings on which the agency based its action." Trantino IV, supra, 154 N.J. at 24. Its action did not violate "express or implied legislative policies." Ibid. Nor did it reach a conclusion that could not reasonably have been made on a showing of relevant factors. Ibid.
We are, however, troubled by the Board's failure to secure a report from his treating psychologist, William Boyd. Dooley noted the inmate had been in counseling for twelve years and opined that he should remain in counseling until the psychologist was confident he was ready for release. With that information in hand, it was incumbent on the Board to secure a report from Boyd to consider with the reports of the examining psychologists. Because the Board did not consider this readily available information, we remand the determination of the extended FET for reconsideration in light of a report from Boyd to be secured by the Board.
After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the inmate's remaining arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).
Affirmed in part and remanded in part. We do not retain jurisdiction.