July 6, 2011
IN THE MATTER OF THE CIVIL COMMITMENT OF R.M. SVP-486-08.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-486-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 24, 2011
Before Judges Carchman and Graves.
Defendant R.M. appeals from an order civilly committing him after being found a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. On appeal, R.M. argues that evidentiary errors, most importantly the admission of hearsay evidence through the "backdoor" of N.J.R.E. 703, were error and warrant reversal. Because neither the experts nor the judge considered the challenged evidence, we affirm.
We adduce the following facts from the record. On December 31, 1991, R.M., a retired New York City police officer, was on duty as an armed, uniformed ConRail police officer. M.C., a seventeen-year-old female, was in Dunkin Donuts with her two friends. R.M. asked the group to leave after they threw napkins over the counter. After M.C. drove her friends home, she was cut off by another driver, and an altercation ensued. Both drivers left the scene uninjured in their automobiles. R.M., following in his unmarked police car, observed the encounter, but did not intervene.
M.C. was alone in her vehicle when R.M. stopped her by using his flashing light. R.M. told M.C. that she was under arrest for assault and put her in the rear seat of his vehicle. R.M. drove for approximately half an hour, taking M.C. to an isolated location. R.M. told M.C. that if she allowed him to search her, he would let her go. He instructed her to remove the leg of her jeans, then held her arms and legs down and vaginally raped her in the back seat, ejaculating in her vagina. After the rape, he drove her back to her car and stated that raping her was "easier than going through the hassle of doing the paperwork for arresting [her]."
R.M. was arrested thereafter, and indicted for first-degree kidnapping, first-degree aggravated sexual assault, and second-degree official misconduct. At trial, R.M. admitted that he had lied to investigators, signing a false sworn statement, because:
I knew that I had had sex with the [M.C.]. I made up stores about different things in order to justify my pants and everything else and the semen in the car. Like I said, I had to keep something for my own defense because if they knew everything whatever happened, the truth, they would probably try to twist it around.
The jury convicted R.M. on all counts, and he was sentenced to a term of twenty years in prison.
The investigation leading up to trial also revealed other facts. Police spoke with several prostitutes in the area, two of whom identified R.M. from a photograph as having approached and harassed them. In a forensic evaluation written by Brian Friedman, Psy. D., Dr. Friedman summarized the information:
One prostitute, J.P., reported that she was with a "John" when [R.M.] pulled them over. [R.M.] told the "John" to leave and told J.P. to get into the rear seat of his unmarked patrol car. [R.M.] reportedly told J.P. that he picks up prostitutes in Newark after they get paid by a "John," and then the prostitute would "take care of him."
J.P. offered [R.M.] oral sex, but he requested that they meet later that night. [R.M.] picked J.P. up at 2:30 a.m. and the two drove for some time while [R.M.] kept telling her that he wanted to get laid.
J.P. became frightened and commented that she "might be dirty" and was awaiting an AIDS test, as which point [R.M.] reportedly told her that he would see her another night. Another prostitute, L.T., reported that [R.M.] was following her and told her to get into the backseat of his unmarked police car; L.T. had just finished a "date" with a "John." [R.M.] reportedly questioned L.T. about her activities, wrote down her name and address, and searched her pockets and lifted up her shirt (exposing her breasts) to see if she had anything underneath. After letting L.T. go, [R.M.] continued following her. L.T. went into another vehicle and performed oral sex on a "John," and when she exited the van she again saw [R.M.] walking toward her with a flashlight. L.T. went into her residence at this time. In addition to these two prostitutes who identified [R.M.] in a photo array, numerous other prostitutes had made complaints to police about a police officer in an unmarked vehicle being involved with prostitutes.
R.M.'s ConRail police lockers were also searched, and the following items were discovered:
Locker #1: police issued equipment (i.e., gun holster, handcuffs, uniforms); 1 "Celebrity Sleuth" pornographic magazine, 2 "Celebrity Skin" pornographic magazines; 2 "Lips" pornographic magazines; 3 loose pages of pornographic magazine pictures; 1 nylon cord formed into a noose; 5 sealed condoms. Also found in the locker was 1 brown briefcase containing black leather gloves; 1 tube of H & R lubricating jelly; numerous pornographic photographs; one pair binoculars; 2 flashlights; several folded, white paper towels; camera pouch containing additional handcuffs and integrity seals; FOP member shield; folding knife; 5 folding maps; snap pouch containing 9 sealed condoms and 4 sterile alcohol wipes; Conrail paperwork and forms; 1 "Fling" pornographic magazine; 1 "Gent" pornographic magazine. In the pocket of a black uniform jacket were numerous pieces of paper listing street names (some crossed off), license plate numbers, people's names, and addresses.
No charges were filed regarding the statements of J.P. or L.T., and there was no evidence of any sexual activity with either of them.
R.M. was not found eligible for sentencing to the Adult Diagnostic and Treatment Center (ADTC), and served the majority of his sentence at Riverfront State Prison. R.M. was paroled in 1997.
In March 2000, D.W., a twenty-six-year-old female, awoke to find R.M. lying on top of her with his penis inside her vagina. She "grabbed his penis and pushed him away." D.W. had taken medication to help her sleep, which had prevented her from waking and detecting R.M. sooner. When D.W. confronted R.M., he stated that "he was an ex-cop and the police would not believe [her]."
D.W. contacted the police and R.M. was arrested. He was still on parole, and he pled guilty to fourth-degree criminal sexual contact. He was sentenced to a term of eighteen months in prison.
Five days after the incident, D.W. was in the bathroom of her house when she noticed something amiss. In a subsequent appeal, we summarized the facts as follows:
D.W. was in the main bathroom when she noticed that the heater grate had a bend in it and there was a screw loose. When she looked inside, she thought she saw something in there so she got a screwdriver and unscrewed it. She saw what she thought was a camera and wire and called her brother in to confirm it. She and her brother then followed the wires back to the defendant's room. There is one wall separating the bathroom from [R.M.]'s bedroom. The camera was facing the shower and the [D.W.'s] son's potty-chair.
After D.W. found the camera, she went into the living room and viewed one of the tapes there. She saw herself showering, her mom showering, and her son being potty-trained on the tape. She viewed three tapes; two of them were mostly space with brief periods of someone coming in and the other one was an edited tape with the same scenes repeated again and again. The initials D.W./T.B. were written on the edited tape.
D.W. never knew there was a camera or microphone in the bathroom. She never consented to having herself recorded or her conversations recorded.
Investigator John Nahrwold . . . subsequently conducted a search of the premises. He took about twenty-two to twenty-nine videotapes from the premises. He viewed all the tapes in his office. About seven of the tapes had scenes from the bathroom, about four of them contained sounds recordings and about three of them contained conversations. Of the seven that depicted bathroom scenes, D.W.'s child was always naked in them. [State v. [R.M.], No. A-0572-02 (App. Div. Oct. 15, 2003) (slip op. at 2-4).]
R.M. was arrested and charged with endangering the welfare of a child, N.J.S.A. 2C:24-4(b), wiretap interception, N.J.S.A. 2A:156A-3(a), and possession of an intercepting device, N.J.S.A. 2A:156A-5(a). In 2002, a jury found R.M. guilty of the wiretapping offenses. He was sentenced to a term of five years in prison.
While out on bail for the sexual offense against D.W., R.M. also committed a sexual offense against L.B., a thirty-five-year-old female. On September 16, 2001, after seeing L.B. at a party, R.M. drove to her house. A friend drove L.B. home, and R.M. was there waiting for her. Inside, R.M. gave her a drink; she fell asleep and awoke to find some of her pubic hair had been shaved. L.B. did not report the incident at the time because "she was not 100% sure that he shaved her." Later, R.M. spontaneously admitted to police that "he had once shaved his roommate's vagina."
Twelve days later, R.M. picked up L.B. from work and drove her home. L.B. took a prescription and went to bed. She woke around 4:30 a.m. and found that her clothing had been removed, R.M. was lying on top of her, and his hand was touching her vagina. She pushed him off, and R.M. left.
When he was interviewed, R.M. denied touching L.B. or removing her clothing. A complaint was filed against R.M., and he pled guilty to fourth-degree criminal sexual contact. He was subsequently sentenced to a term of eighteen months in prison.
R.M. was evaluated by Christine L. Kokonos, Psy. D., at Riverfront State Prison on November 9, 2007. Dr. Kokonos determined that R.M. "DOES meet the criteria for referral as a repetitive and compulsive violent sexual offender who requires formal treatment prior to being released back into society." Dr. Kokonos also noted that R.M. "estimated that he spent approximately 3,400 dollars a year on pornography." Because R.M. "clearly me[t] the criteria for repetitiveness" and his "sexual psychopathology . . . [wa]s compulsive in nature," Dr. Kokonos recommended that R.M. "SHOULD be referred to the Attorney General's office for consideration of civil commitment under New Jersey's present SVP laws."
The State filed a petition to civilly commit R.M. under the SVPA. The petition included two clinical certificates prepared by Sureshbabu Kurra, M.D. and Neal Brandoff, D.O., both of whom found that R.M. was a compulsive sexual offender. In his report, Dr. Brandoff noted that R.M. "absolutely denies saying he spent '$3400/year on pornography.' He remembers saying he spent $300/[year] on videos, NOT pornography." Judge Thomas A. Brown, Jr. ordered the temporary commitment of R.M. to the Special Treatment Unit pending a final hearing, finding probable cause to believe that R.M. was a sexually violent predator.
An initial hearing was held before Judge Serena Perretti. The State presented the testimony of Dr. Friedman, as well as Pogos Voskanian, M.D. R.M. did not call any witness nor present any evidence.
Dr. Friedman testified that he evaluated R.M. and summarized his findings in his report. In addition to interviewing R.M. for approximately two-and-a-half hours, Friedman had available to him the documents listed in his report, including, among others, the petition for civil commitment, psychological evaluations, judgments of conviction, pre-sentence reports, statements of witnesses, and R.M.'s statements. This information provided Friedman with: a clear understanding of [R.M.'s] offending history, both sexual and non-sexual . . . .
I look again for also behavioral evidence based on what [R.M.'s] behavior at the times he committed various crimes. This helps inform, again, personality assessment.
I look at any past evaluations that have been done of the individual to see how he presented at different times in the past. . . . It also helps to just gather certain developmental and historical information to create kind of a developmental history of the individual.
And, again, with the ultimate goal of coming to impressions about his kind of pattern of offending, victim profiles, and other attributes that are related to diagnoses and risk for future crimes.
Friedman also utilized other experts' diagnoses of R.M. to determine how he presented in the past, but Friedman "certainly d[id]'t rely on anybody else's diagnoses. My -- the diagnoses I give in my report are my own." Other expert diagnoses included Dr. Kokonos's, Dr. Kurra's, and Dr. Brandoff's. Friedman also testified that this information is the sort customarily referred to by persons in the profession of making psychological evaluations.
At this point, R.M.'s counsel made the first of numerous objections regarding the "embedded hearsay" in Friedman's testimony. R.M.'s counsel requested that the "hearsay be used only to assist the court in determining whether or not Dr. Friedman is reliable and not to prove the underlying facts represented." The judge agreed, noting that "[t]he court may not and will not use inadmissible hearsay as substantive proof of the matters asserted, but will consider it only as it bears upon the testimony, the reasons the diagnosis [was] made by the expert who is testifying."
One of R.M.'s objections related to the statements given by J.P. and L.T. The judge overruled the objection, noting that the testimony was likely relevant to Friedman's diagnosis, was of the sort usually relied upon by persons in the profession and a foundation had been established. Friedman then testified that he had included the information from the prostitutes in his report and testimony because they were "relevant for personality assessment with -- of [R.M.]. I think they're relevant for what I see as a pattern of abusing his position of authority, which based on my review of everything that I've seen in my opinion, . . . [R.M.] was doing that . . . ." In addition, Dr. Friedman testified that if he disregarded the statements of J.P. and L.T., "my diagnostic impressions of personality would remain the same whether or not I viewed statements of J.P. and L.T. . . . that he is a high risk regardless of these incidents."
Dr. Friedman's testimony included a summary of R.M.'s criminal history, including descriptions of R.M.'s various sexual offenses. He also remarked on the disturbing contents of R.M.'s ConRail locker, including the items in the briefcase, which he testified "are consistent with what is often found in what we would call a rape kit."
Throughout the interview, Dr. Friedman observed that R.M. had an "incredibly flat affect," and that "[n]othing seems to get him angry or irritated despite, actually, attempts on my part, honestly, to try and irritate him." Friedman found this relevant in "assessing psychopathy for one. Psychopaths are --they tend to present with extremely flat affect. Not much emotionally connects with them. So, it's relevant in that regard." This finding was consistent with the results of the Hare Psychopathy Checklist - Revised. This instrument is "the most widely used measure for assessing psychopathy." "Individuals who score higher than 25 in the P.C.L.R. are found to be at increased risk for general violence as well as sexual violence." "30 is the cut off for categorizing someone as a psychopath," and R.M. scored 30.6. Friedman testified that, "in my clinical opinion, based on my evaluation, [R.M.] meets that criteria to be categorized as a psychopath."
Dr. Friedman also found it relevant that R.M. would commit a sexual offense against L.B. while on bail and pending trial because "it highlights [R.M.]'s disregard for the law, a disregard for supervision, requirements that are placed on him. And it speaks to I think the pervasiveness of his sexual pathology. That despite criminal charges looming of a sexual nature, he chooses to commit another sex crime."
Dr. Friedman also administered an Minnesota Multiphasic Personality Inventory-2 (MMPI-2). Friedman reported that R.M. "approached the test in an extremely defensive fashion" which he testified caused "[v]ery significant elevations on what's called the L-scale or lie scale." This was consistent with other observations that R.M. was "very defensive and a very guarded individual who is focused on impression management." One unrealistic claim R.M. made was "that he has never in his lifetime masturbated while having a sexual thought . . . ." Friedman noted that this "doesn't pass the logic test" and contradicted his statement to Dr. Kokonos that "he spent . . . approximately $3,400 a year on pornography."
Dr. Friedman diagnosed R.M. with "paraphilia N.O.S. [(not otherwise specified)], non-consent and personality disorder N.O.S. with anti-social, narcissistic and paranoid features. I also provisionally list a diagnosis of voyeurism." "The first disorder listed, Paraphila NOS, means that [R.M.] experiences recurrent and intense fantasies, urges, or behaviors involving sexual arousal to non-consensual sexual encounters." "The next disorder listed provisionally, Voyeurism, suggests that [R.M.] is sexually aroused by surreptitiously observing other in sexual situations."
The final disorder listed, Personality Disorder NOS, refers to [R.M.]'s complicated personality organization, wherein he violates the rights of others to meet his own needs. [R.M.] is exceedingly self-focused, lacks remorse for all of his behavior, uses others as objects to meet his needs, fails to accept responsibility for his behavior, views himself as "above" others, suspects malevolent motives in others without legitimate reason, and is the definition of "affectively flat." . . .
[H]e is a psychopath. This disorder predisposes [R.M.] toward committing a sexually violent act as defined by New Jersey's Sexually Violent Predator Act.
Friedman testified that one "classic paraphilic behavior that [R.M.] has demonstrated . . . is the possession . . . of what appears to me to be a rape kit. This, what looks to me to be . . . targeting and tracking certain vulnerable individuals that he could offend against." As to the personality disorder, Friedman testified that R.M. is grandiose, glib, mildly charming, cannot accept responsibility for his behaviors, and "has not learned by the deterrent effects of incarceration." Friedman noted that R.M. is unable "to look at things from other people's perspective or point of view" and that "[t]here's also a paranoid flavor to him -- his personality make-up in that he described to me numerous conspiracies against him by completely unrelated individuals -- various police departments, various victims, his own bosses . . . all these individuals who made up these stories about him in order to get him."
Dr. Friedman also used the Static-99, a "well validated actuarial instrument designed to estimate the probability of sexual and violent recidivism among adult males . . . ." Scores range from zero to twelve, and R.M. "obtained a score of 7. . . . A score of 7 corresponds with a high risk category."
Dr. Friedman identified R.M.'s age of sixty-two as the only possible mitigating factor, but discounted it because R.M. "was committing sexual offenses well into his 50's. . . . For that reason, I do not see this as significant really in any way." In addition, because R.M. "never engaged in sex offender treatment," there was "no mitigating effect of, again, successful completion of treatment."
Dr. Voskanian's opinion was consistent with that of Friedman's. Voskanian met with R.M. for approximately two hours and prepared a report based upon the interview and a review of additional records. Dr. Voskanian diagnosed R.M. with paraphilia N.O.S., rule-out voyeurism, and personality disorder N.O.S. with anti-social traits. He also found that R.M.'s risk to sexually re-offend is high.
Judge Perretti determined that the testimony of the doctors was undisputed. The judge also found that the State's evidence, "both the testimony and the documentary evidence, is clear and convincing." Based on the evidence, the judge concluded that R.M. was a sexually violent predator, and ordered his involuntary commitment under the SVPA.
Generally, a trial judge in a SVPA hearing may consider hearsay in order to evaluate the credibility of expert testimony, if the expert based his opinion on such evidence and it is "of a type reasonably relied upon by experts in the particular field . . . ." N.J.R.E. 703; In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02, (App. Div. 2004). "[H]earsay statements upon which an expert relies are ordinarily admissible provided they are of a type reasonably relied upon by experts in the field." State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003).
Moreover, the Supreme Court has determined pre-sentence and police reports relied upon by testifying experts in an SVPA commitment hearing are admissible since these documents are "the type of evidence reasonably relied on by psychiatrists in formulating an opinion as to an individual's mental condition." In re Commitment of J.M.B., 197 N.J. 563, 597 n.9 (citations omitted), cert. denied, ____ U.S. ____, 130 S. Ct. 509, 175 L. Ed. 2d 361 (2009). See also State v. Eatman, 340 N.J. Super. 295, 301-02 (App. Div.) (concluding that a psychiatrist is permitted to testify about a defendant's prior criminal history in order to offer an opinion about a defendant's mental condition), certif. denied, 170 N.J. 85 (2001); In re Civil Commitment of T.J.N., 390 N.J. Super. 218, 224-25 (App. Div. 2007) (permitting use of actuarial instruments and background); In re J.S.W., 371 N.J. Super. 217, 225 (App. Div. 2004) (permitting use of hearsay in pre-sentence reports), certif. denied, 183 N.J. 586 (2005); A.X.D., supra 370 N.J. Super. at 201-02 (permitting use of STU reports).
Here, the trial judge specifically stated that he was admitting the hearsay evidence for the limited purpose of evaluating the expert's credibility. The materials referenced are normally considered in a psychological evaluation, and the experts' testimony to that effect was undisputed. We find no merit in R.M.'s argument.
R.M. also argues that the experts "relied on hearsay documents to arrive at their diagnoses." R.M. takes specific issue with the allegations made by J.P. and L.T. These allegations were unsworn and unproven, but they were not relied upon by either the experts or the judge. The judge noted that the "court does not place any importance whatsoever and does not consider them in reaching the conclusions expressed herein."
Here, as in In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 490 (App. Div.), certif. denied, 185 N.J. 393 (2005), "each expert at the commitment hearing was specifically asked if their opinion would be the same without consideration of that incident and each responded affirmatively." Because the allegations were not relied upon, there is "no need to deal with this potentially thorny issue." Ibid.
R.M. also argues that the State failed to establish, by clear and convincing evidence, that he is a sexually violent predator who "suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined . . . ." N.J.S.A. 30:4-27.26. We disagree.
"Review of a trial court's decision regarding a commitment hearing is extremely narrow." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). This court gives "the utmost 'deference' to the reviewing judge's determination of the appropriate balancing of societal interest and individual liberty." J.M.B., supra, 395 N.J. Super. at 89-90 (quoting In re J.P., 339 N.J. Super. 443, 459, (App. Div. 2001)). The trial court will be "modified only where the record reveals a clear abuse of discretion." V.A., supra, 357 N.J. Super. at 63. "The appropriate inquiry is to canvass the significant amount of expert testimony in the record and determine whether the lower courts' findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).
R.M. contends that "[n]either doctor provided any learned treatises to support their opinions." However, Dr. Friedman informed the court that he "trained with Robert Hare at Delforth. Robert Hare is the developer of the [Hare] Psychopathy Checklist," which is "the most widely used measure for assessing psychopathy." R.M. also stipulated to the qualifications of both Drs. Friedman and Voskanian, and allowed entry of their CVs in evidence without objection. Both doctors personally examined R.M., and the record is replete with personal observations the doctors made to support their diagnoses.
Giving the trial judge's decision the "deference" to which it is entitled, there was no "clear abuse of discretion" in relying upon the experts' testimony and reports even in the absence of a reference to a treatise. J.M.B., supra, 395 N.J. Super. at 89-90. As the trial judge noted, "[t]he testimony of Drs. Friedman and Voskanian was undisputed." The judge also found that [b]oth Dr. Friedman and the psychiatrist, Dr. Pogos Voskanian . . . summarize in their reports . . . their understanding of the details of respondent's sexually violent behavior. The summaries by Drs. Friedman and Voskanian comport accurately with the documents available and are substantially in accord with the court's own recitation stated hereinabove.
The experts' testimony was extensive, relevant and consistent. There is no error here.
As to R.M.'s remaining issues, we have carefully reviewed the record and the arguments and conclude that they are without merit and do no warrant further discussions. R. 2:11-3(e)(2).
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