September 23, 2011
IN THE MATTER OF THE CIVIL COMMITMENT OF J.T.M. SVP 515-08
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP 515-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 12, 2011
Before Judges C.L. Miniman and LeWinn.
J.T.M. appeals from the June 10, 2009 order civilly committing him to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). We affirm.
In August 2005, appellant was indicted for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count two); second-degree burglary, N.J.S.A. 2C:18-2 (count three); and third-degree aggravated assault causing bodily injury, N.J.S.A. 2C:12-1(b)(7) (count four). Pursuant to a negotiated plea agreement, appellant pled guilty to count one amended to second-degree sexual assault by physical force or coercion, N.J.S.A. 2C:14-2(c)(1), and to count four; count one was further amended to third-degree for sentencing purposes.
In giving his factual basis for the plea, appellant acknowledged that he had been "drinking pretty heavily" at the time of the offense but stipulated that the facts as set forth in the police reports, including the victim's statement, were true. Those facts established that at the time of the offense appellant was employed by a cleaning service that contracted to work in the victim's apartment building. He gained entry into the victim's apartment, choked her into unconsciousness and then had sexual intercourse with her; while unconscious, the victim defecated. At the time, appellant was in the Intensive Supervision Program (ISP) and wore an electronic monitoring bracelet; he had been placed in ISP after serving a sentence for eluding in 2004.
Appellant was evaluated at the Adult Diagnostic and Treatment Center to determine if he was eligible for sentencing under the Sex Offender Act, N.J.S.A. 2C:47-1 to -10 (SOA). The evaluation concluded that there was "insufficient psychological evidence" to determine if his offense was "part of a repetitive compulsive pattern of criminal sexual behavior"; therefore, appellant was not eligible for sentencing under the SOA.
On March 30, 2007, appellant was sentenced to an aggregate term of four years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2. In his statement of reasons for the sentence, the judge noted that appellant's "unaddressed mental health and substance abuse issues make him dangerous. Unless there is a substantial change in attitude, [he] is highly likely to reoffend. [He] does not accept personal responsibility --shortcomings are blamed on others. [He] lacks honesty."
On November 25, 2008, the State petitioned to have appellant civilly committed under the SVPA. The commitment hearing was held on May 27, 2009, and we summarize the evidence adduced at that hearing as follows.
Dr. Brian Friedman, a psychologist, and Dr. Pogos Voskanian, a psychiatrist, testified on behalf of the State. Both experts had personally interviewed appellant and reviewed numerous documents in his record, including prior evaluations, his criminal history and victims' statements. In response to an objection by appellant's attorney, the judge admitted both experts' reports "subject to [the] normal hearsay proviso."
Voskanian testified that in discussing the predicate offense, appellant admitted to having sex with the victim but claimed that it had been "consensual" and that he "did not use any physical force"; the victim had reported a rape only because "her husband walked in." Appellant provided no explanation for the strangulation marks found on the victim and did not recall her defecating. Voskanian characterized the predicate offense as "particularly brutal" based on the victim's injuries and because her loss of bowel control indicated "extreme fear, extreme stress . . . and . . . significant physical violence."
Voskanian reviewed documents relating to appellant's prior arrests and convictions. These included an arrest in North Carolina in 2001 for burglary and attempted rape, for which appellant pled guilty to the lesser charges of breaking and entering and assault on a female; the police report stated that appellant had broken into the apartment of a sleeping fifty-three-year-old woman and was sexually molesting her when she awoke and he left. In 2004, appellant was convicted of an eluding charge that stemmed from his forced entry into a woman's apartment; he pushed and dragged her to the floor and fled when her screams alerted neighbors who called the police. Voskanian opined that the predicate offense in 2005 and the prior offenses in 2001 and 2004 were "very similar," involving assaultive behavior toward women. The doctor also noted that appellant minimized his conduct on each occasion.
Voskanian reviewed appellant's psychological history, including all prior evaluations; the doctor's stated purpose for this review was "to develop a three-dimensional view" of appellant. Voskanian diagnosed appellant with anti-social personality disorder. With respect to his diagnosis of any mental abnormalities that would predispose appellant to sexually reoffend, the following colloquy ensued on direct examination:
Q Doctor, did you ultimately conclude that he suffers from mental abnormality which predisposes him to sexual re-offense?
Q And is that your diagnosis . . . [in] your report, your Axis 1 diagnosis, for consideration of a Rule Out Paraphilia?
Q And why are you making it a Rule Out?
A . . . [H]e does not describe anything. Based on historical factors, without [the] interview, I had the diagnosis of Rule Out. He did not admit to anything.
. . . [I]f you put it on a scale, I'm 99 percent more inclined to diagnose him with Paraphilia based on the history and similar descriptions of the offending behaviors.
But, just for fairness, until he comes to [a] decision to discuss [his] offenses and . . . pathology, I left it at this point a Rule Out.
The point being that he also denied his anti-social personality traits, . . . and his presentation denying prior conduct problems and denying anything basically presenting himself the best he can, I do believe, even if there was no diagnosis of Paraphilia, based on anti-social personality disorder and impulse control disorder, which I did not . . . diagnose, but there is a strong impulsive component here, he would still be at high risk. And I'm more . . . inclined to diagnose him with Paraphilia.
Voskanian concluded that appellant's risk factors for re-offense, "including history of sexually violent offenses, alcohol abuse, antisocial personality disorder, poor insight into his pathology, high scores on actuarial instruments, committing offenses while under supervision[,]" in conjunction with his lack of treatment history for either sex offenses or substance abuse, "indicate[d] that [appellant] is at high risk for sexual re-offense." The doctor stated that he would have characterized appellant as high-risk even without the prior offenses because of the "high level of brutality" of the predicate offense coupled with appellant's "denial" that he committed it. Voskanian assessed appellant as having "serious difficulties controlling his sexual-offending behavior, such that he [would] be unable to control the sexual impulses if released into the community in his current condition[.]"
Dr. Friedman's assessments and opinions were consistent with Voskanian's. Friedman reviewed the same documents and also interviewed appellant. He stated that he did not "rely on the diagnoses or . . . opinions" of other evaluators, but reviewed them to "get snapshots over time to try to come to an overall picture of the individual as a whole."
Having reviewed appellant's criminal history, Friedman found the predicate offense to be the "most concerning, compelling in this case" because of the "degree of trauma that was apparently suffered by the victim," the fact that the victim stated appellant had used a "ruse to gain . . . private access to [her]," and that appellant "was wearing an electronic monitoring bracelet" at the time of the offense. Friedman opined that committing the predicate offense only a few months after being released from prison, while wearing the bracelet, indicated that appellant "unfortunately thus far has not responded to the deterrent effects of incarceration."
In his interview, appellant gave the same description of the predicate offense as he had to Voskanian. When confronted with discrepancies in the various versions of the event he had given to other evaluators, appellant claimed that "evidence was fabricated against him" and that he was "misquoted by different people."
Friedman diagnosed appellant with moderate to severe antisocial personality disorder, noting "significant psychopathic traits, evidenced by his aggressive behavior towards others (especially women), . . . failure to respond to the deterrent effects of legal sanctions, . . . lack of remorse for harming others, and failure to accept responsibility for his behavior." Friedman opined that appellant's anti-social personality disorder "predisposes [him] toward committing a sexually violent act . . . ."
Friedman also diagnosed appellant with Rule Out Paraphilia because "there was just not enough evidence to indicate" the presence of Paraphilia. However, he opined that "some things . . . suggest a possible Rape Paraphilia" such as "sexual arousal in a non-consensual encounter. . . . Additionally, committing sexual offenses, when there's a high likelihood of being caught, is often suggestive of Paraphilic Rape as well, because it suggests a . . . sexual push, that one doesn't resist even in a high-risk situation."
Friedman noted that appellant seemed to have a supportive family.*fn1 However, because appellant had not "developed any internal controls and the fact that . . . he was living with family at the times he committed the other crimes," the doctor did not see any "possible support system as significantly impacting risk . . . ."
Friedman rated appellant at a seven on the Static-99 risk assessment scale, which indicated a "high risk for sexual recidivism." The doctor concluded that appellant "would have serious difficulty controlling his sexual-offending behavior if released . . . ." In addition to his Static 99 score, Friedman found that "the most concerning factor is the rapidly escalating nature of [appellant's] sexual offending," and that "rather than be deterred by sanctions for earlier crimes, he progressed in both method of attack and level of violence." He concluded that, "should [appellant] sexually re-offend, it is likely that the resulting degree of victim trauma would be relatively high and potentially grave."
On June 10, 2009, the judge rendered a decision from the bench. After reviewing the testimony and documentary evidence, the judge concluded that the State had proved by clear and convincing evidence that appellant met the standards for civil commitment under the SVPA.
I'm satisfied having reviewed the record . . . [and] all the testimony, defined by clear and convincing evidence that [appellant] does in fact suffer from a[n] Antisocial Personality Disorder and from alcohol abuse, at least, both are diagnosable under the DSM IV. And he probably also suffers from Paraphilia. But without that diagnosis I still find that his record shows that the conditions that he has predispose him to engage in acts of sexual violence. And as the Supreme Court of the United States has indicated, and since this . . violent behavior [is] an important indicator of future violent tendencies . . .
[h]e would have serious difficulty if released controlling these behaviors due to his lack of control over himself, which he exhibited right in the courtroom.
And I'm satisfied to find that if he were released he would be committing criminal acts, and included among them sexually violent acts within the reasonabl[y] foreseeable future. He would be highly likely to do that. The risk is high.
I credit the testimony of the two experts, both of whom agree that his risk was high, and hearing the nature of what he intends to do . . . using the balancing tests of W.Z.,*fn2 . . . what he intends to do is very, very dangerous . . . . And therefore I have no hesitation whatsoever to conclude that he is a dangerous person and highly likely to be involved in these kinds of activities, if he were to be released.
Appellant now raises the following contentions for our consideration:
BY ALLOWING THE STATE'S EXPERTS TO BASE THEIR DIAGNOSES AND CONCLUSIONS ON ALLEGED FACTS ESTABLISHED THROUGH INADMISSIBLE HEARSAY, THE SVPA PROCEEDING VIOLATED THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION ARTICLE 1, PARAGRAPH 1 (PROCEDURAL DUE PROCESS, EQUAL PROTECTION AND SUBSTANTIVE DUE PROCESS CLAUSES) (Partially Raised Below).
A. Application Of Criminal Due Process Protections to Civil Cases.
B. Matter of C.A. Is No Longer Applicable.
C. The State Cannot Evade The Confines of Apprendi/Blackely/Shepard Through The Backdoor of R. 703.
D. At The SVPA Proceeding, The State's Experts May Only Make Diagnoses Or Draw Conclusions From (1) The Facts Defendant Has Pled To or (2) Hearsay Supported By Substantive Proof.
E. The Same Court Cannot Act As Both Gatekeeper And Factfinder.
F. The SVPA Violates Federal and State Substantive Due Process.
J.T.M.'s INVOLUNTARY COMMITMENT UNDER THE S.V.P.A VIOLATES THE UNITED STATES CONSTITUTION, ARTICLE I, SECTION 10, CLAUSE 1 AND NEW JERSEY CONSTITUTION ARTICLE IV, SECTION 7, PARAGRAPH 3 (EX POST FACTO CLAUSES) BECAUSE THE EXPERT'S [SIC] DIAGNOSES ARE IMPRECISE AND THE STATE HAS PUNISHED HIM FOR PRIOR CONDUCT (Not Raised Below).
THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT J.T.M. SHOULD HAVE BEEN INVOLUNTARILY COMMITTED.
A. Standard of Review
B. The State Failed To Prove Mental Abnormality
C. The State Failed To Prove The Lack Of Control Requirement Of W.Z.
J.T.M. WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
We note initially that our scope of review of SVPA commitment orders is "extremely narrow"; we affirm such orders unless the record reveals a "clear abuse of discretion." In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.) (internal quotation marks omitted), certif. denied, 177 N.J. 490 (2003). Where, as here, the challenge is premised upon a claim of erroneous evidentiary rulings, we are particularly deferential in assessing whether the judge abused his discretion. State v. Brown, 170 N.J. 138, 147 (2001); see also In re Commitment of R.S., 339 N.J. Super. 507, 531 (App. Div. 2001) ("[g]enerally, appellate courts apply an abuse of discretion standard to the evidentiary rulings of a trial court"), aff'd, 173 N.J. 134 (2002). With those standards in mind, we turn to appellant's contentions.
As a general matter, a trial judge in an SVPA commitment hearing may consider hearsay in order to assess the credibility of expert testimony, if the expert has based his opinion on such evidence and the evidence is "of a type reasonably relied upon by experts in the particular field." N.J.R.E. 703; In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). An expert is permitted to rely upon hearsay information in forming an opinion with respect to an individual's mental condition. In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 612 (App. Div. 2003), certif. denied, 179 N.J. Super. 312 (2004). The judge may not consider such hearsay statements as substantive evidence unless the statements come within an exception to the hearsay rule. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 56 (App. Div. 2004); A.X.D., supra, 370 N.J. Super. at 202. We are satisfied from our review of the record that the judge adhered to these principles in rendering his decision in this case.
The pertinent query is whether "the opinion ultimately rendered . . . is that of the witness based on his . . . own evaluation of the committee, prior offenses, and objective test data." In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 492 (App. Div.), certif. denied, 185 N.J. 393 (2005). Here, neither Friedman nor Voskanian "simply agree[d] with the opinions of other, non-testifying examiners." Id. at 489. Rather, each formed his opinions based on an assessment of appellant's prior history and psychological/psychiatric deficiencies. In sum, we find no merit to this argument.
We conclude that appellant's remaining arguments "are without sufficient merit to warrant discussion in a written opinion[,]" R. 2:11-3(e)(2), beyond the following comments.
Appellant's efforts to impose standards of criminal procedure upon SVPA proceedings have been clearly rejected by our Supreme Court as well as this court. See State v. Bellamy, 178 N.J. 127, 138 (2003) ("the Legislative intent [of the SVPA] is regulatory. . . . [C]ommitment under the [SVPA] is [not] penal"); see also J.H.M., supra, 367 N.J. Super. at 606-11 (rejecting the "contention that persons subject to commitment under the SVPA are entitled to more constitutional protections beyond those the statute affords[,]" and further rejecting the appellant's claims of (1) a right to a jury trial, (2) requiring the standard of proof to be beyond a reasonable doubt, (3) double jeopardy and ex post facto violations, and (4) the "punitive" nature of the SVPA in light of "the indefinite length of . . . commitment").
In In re Civil Commitment of W.X.C., 204 N.J. 179 (2010), cert. denied, __ U.S. __, 131 S. Ct. 1702, 179 L. Ed. 2d 635 (2011), the Court rejected the argument appellant raises here, namely that "the SVPA is punitive as applied to an offender who has completed his incarceration and is then adjudged to be in need of treatment, but who was not previously afforded the opportunity to undergo such treatment while incarcerated." Id. at 189. Applying the "clear precedent" in Kansas v. Hendricks, 521 U.S. 346, 368-69, 117 S. Ct. 2072, 2085, 138 L. Ed. 2d 501, 519 (1997) (upon which appellant relies here), the Court's "conclusion remain[ed] that the SVPA is remedial and regulatory in nature, and that its incidental effects, including the use of confinement as part of the treatment methodology, do not alter the essential character of the statute." Id. at 195.
We reject as wholly without merit appellant's contention that the State failed to prove his need for commitment by clear and convincing evidence. R. 2:11-3(e)(2). Finally, as we have found no error in appellant's claims, we reject his claim that his counsel rendered ineffective assistance. A.X.D., supra, 370 N.J. Super. at 203 (App. Div. 2004).