December 7, 2011
IN THE MATTER OF THE CIVIL COMMITMENT OF D.K.R. SVP-152-01.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-152-01.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 25, 2011 - Decided Before Judges Carchman and Nugent.
D.K.R. appeals from the April 1, 2011 judgment that continued his involuntary commitment to the Special Treatment Unit (STU) as a sexually violent predator under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He contends that the State failed to prove by clear and convincing evidence that he requires continued involuntary commitment as a sexually violent predator. He also contends that his review hearing was flawed because he was not presented with the right to confront witnesses against him. We reject his contentions and affirm.
The SVPA provides for the involuntary commitment of any person who requires "continued involuntary commitment as a sexually violent predator." N.J.S.A. 30:4-27.32(a). The Legislature's purpose in enacting the SVPA was "to protect other members of society from the danger posed by sexually violent predators." In re Civil Commitment of J.M.B., 197 N.J. 563, 570-71 (2009) (citing N.J.S.A. 30:4-27.25(c)). 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.
If a person has been committed under the SVPA, a court is required to conduct an annual review hearing to determine whether the person should remain in treatment or be released. N.J.S.A. 30:4-27.35. The State must prove by clear and convincing evidence "that the individual poses a threat to the health and safety of others" because of his or her likelihood of engaging in sexually violent acts due to a "serious difficulty in controlling his or her harmful behavior such that it is highly likely" that he or she will reoffend. J.M.B., supra, 197 N.J. at 571 (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)). "Put succinctly, '[c]ommitment under the [SVPA] is contingent on proof of past sexually violent behavior, a current mental condition, and a demonstrated inability to adequately control one's sexually harmful conduct.'" J.M.B., supra, 197 N.J. at 571 (quoting State v. Bellamy, 178 N.J. 127, 136 (2003)).
Indisputably, D.K.R. has a history of sexually violent behavior. He was convicted of rape in 1971 and 1978. From March 1981, shortly after his release from prison on the 1978 conviction, through January 1984, he repeatedly molested his stepchildren. Arrested on nine counts of first degree aggravated sexual assault and three counts of second degree sexual assault, defendant subsequently pled guilty to seven counts of aggravated sexual assault and two counts of sexual assault. The court sentenced defendant on August 13, 1984, to an aggregate prison term of thirty years with fifteen years of parole ineligibility, the sentence to be served at the Adult Diagnostic and Treatment Center at Avenel.
On January 31, 2001, the State filed a petition for civil commitment under the SVPA, citing D.K.R.'s 1984 nine-count conviction as the predicate offense. The Law Division subsequently granted the State's petition and committed D.K.R. Thereafter, periodic reviews were conducted and D.K.R.'s civil commitment was continued after each review.*fn1
The present review was conducted on March 31 and April 1, 2011 before Judge James F. Mulvihill. The State produced expert testimony from psychiatrist Roger Harris, M.D. and psychologist Deborah Roquet, Psy.D. D.K.R. produced expert testimony from psychologist Christopher Lorah, Ph.D. The experts' reports were admitted into evidence. When the State moved D.K.R.'s STU progress notes into evidence, defense counsel objected because D.K.R. "hasn't been afforded the opportunity to adversarially test or confront any of those things." Judge Mulvihill admitted the progress notes as records of regularly conducted activity, N.J.R.E. 803(c)(6), subject to hearsay limitations.
The parties stipulated that Dr. Harris was an expert in the field of psychiatry. Based on his clinical interview, the presentence investigation reports, reports from the Treatment Progress Review Committee (TPRC), progress notes, and reports of forensic evaluations, Dr. Harris diagnosed D.K.R. as having a "very strong [a]ntisocial [p]ersonality [d]isorder, . . . pedophilia, boys and girls not exclusive[,] . . . rule out paraphilia coercion, and an alochol abuse in remission." After reviewing defendant's history of sexual offenses, Dr. Harris explained that D.K.R. commencing a criminal episode within six weeks of his release from prison on a previous conviction for a sexual offense reflected a "very strong and persistent antisocial attitude and behavior that started at a remarkably early age of nine years old." Dr. Harris believed the short duration between D.K.R.'s release from prison and next sexual offense, and the sexual offenses themselves, were "really just an extension of the level of his antisociality." Dr. Harris testified that D.K.R. appeared to "have a low threshold to act to satisfy his sexual drive and his sexual arousal[,]
[w]hether that be children for which he has a parental role in protecting, or just using other opportunities . . . ."
Dr. Harris next explained that defendant attempted to minimize his past acts of sexual violence; consequently, [i]t's going to short-circuit his treatment [in the STU], and treatment is at such a loggerhead that I suggested that the treatment team focus not on the instant offense, but on the other offenses, as a way to help [D.K.R.] build a bridge in treatment . . . and make some progress in that area, which could also address his antisocial attitudes and behaviors, which clearly continue to the present time.
Dr. Harris also explained that D.K.R. did not speak well of his treatment providers in the STU and D.K.R. claimed they were not doing their job. According to Dr. Harris, D.K.R's attitude toward his treatment providers was an example of how his personality was short-circuiting his treatment. Similarly, although D.K.R.'s attendance at therapy and group sessions was good, his participation focused largely on the people in his group, thereby helping others but "short-circuit[ing] his own treatment by . . . not being more forthright" about why he was in treatment.
The doctor concluded that D.K.R.'s mental abnormalities and personality disorder caused him to have serious difficulty controlling his sexual offender behavior. He determined that D.K.R. had a high risk of reoffending if not confined in a secure facility.
The State also called Dr. Deborah Roquet, a member of the TPRC, and an expert in psychology. Dr. Roquet diagnosed D.K.R. with paraphilia NOS (non-consent). She testified that D.K.R. was doing well in some aspects of his treatment, but was not making progress in other areas. He was "stalled with regard to learning about his sex offending specifics, his dynamics, [and] relapse prevention strategies[,]" which is the primary focus of treatment at the STU. The doctor explained:
[I]t's important for the resident to understand why he did the things that he did, in order to identify interventions; in other words, things that he can do so that if he starts to go in the direction, taking steps towards offending at some future date, he will first of all recognize that that is happening, that he brings awareness, understanding, knowledge, into the picture.
And number two, so that he will have interventions at the ready. He will have preplanned what are the kinds of things that might signal to me that I'm getting into a bad situation where this might be happening, and what are the kinds of things, again with the personal maintenance contract, to have ready at hand, what other things that I can do in this kind of situation so I don't go further in this direction and perhaps reoffend.
Dr. Roquet and D.K.R.'s treatment team recommended that he remain in Phase II of treatment instead of progressing to Phase III because D.K.R. had "not been working on his sex offender-specific treatment issues, the core treatment issues for some time." In addition, D.K.R. had refused to participate in several aspects of treatment his treatment team and the TPRC had recommended. Because of his continuing risk for recidivism, the panel had decided not to advance D.K.R. up a level in his treatment.
Dr. Christopher Lorah, an expert psychologist, testified for D.K.R. Dr. Lorah acknowledged that D.K.R. denied for several years that he molested his stepchildren. Nevertheless, Dr. Lorah considered the charges as accurate for purposes of his opinion. Dr. Lorah disagreed with the opinions of Drs. Harris and Roquet. Dr. Lorah found little or no correlation between defendants who are in denial of their offenses and recidivism.
Concerning treatment, Dr. Lorah noted that D.K.R. had completed five modules, which demonstrated that under the right circumstances, D.K.R. could benefit from advancement to Phase III's modules. In view of D.K.R.'s completion of certain modules and the documentary evidence that he had been recommended for advancement to Phase III in 2007, Dr. Lorah did not understand why D.K.R. was still in Phase II.
Dr. Lorah gave a provisional diagnosis of pedophilia, and major depressive disorder based on D.K.R.'s reaction to his involuntary civil commitment.*fn2 Dr. Lorah did not diagnose D.K.R. with a personality disorder. Concerning D.K.R.'s risk assessment, Dr. Lorah noted that D.K.R. had a score of two on the Static-99, an actuarial measure of risk assessment that places him in the moderate to low range for reoffending. According to Dr. Lorah, the score was consistent with all of D.K.R.'s records since D.K.R.'s sixtieth birthday the previous year. In light of this score, Dr. Lorah testified that he did not "believe that [D.K.R.] currently poses a highly likely threat to the public in terms of potential for sexual offending."
Judge Mulvihill found the testimony of Dr. Harris and Dr. Roquet to be very credible. The judge did not find the testimony of Dr. Lorah to be entirely credible based on numerous factors including the doctor's defensive nature during cross-examination, not being forthright when answering questions, and failing to consider the full scope of data and records when formulating his opinion. The judge continued D.K.R's civil commitment, finding that there was clear and convincing evidence [that D.K.R.] has been convicted of a sexual violent offense[,] . . . that [he] continues to suffer from a mental abnormality, a personality disorder, . . . he has not had sufficient treatment, . . . [and] he's highly likely to engage in further acts of sexual violence if not confined to a secure facility for control, care and treatment.
The judge issued an order dated April 1, 2011. D.K.R. now appeals from that order.
The scope of appellate review of a trial court's decision in a commitment proceeding 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). We accord the "utmost deference" to the trial judge's "determination as to the appropriate accommodation of the competing interests of individual liberty and societal safety in the particular case." State v. Fields, 77 N.J. 282, 311 (1978). A trial court's determination will not be modified unless it reveals a clear mistake in the exercise of the trial judge's broad discretion. V.A., supra, 357 N.J. Super. at 63.
After reviewing the record in light of D.K.R.'s arguments, we conclude that Judge Mulvihill's credibility findings and his determination that D.K.R. is highly likely to engage in further acts of sexual violence if not confined to a secure facility for control, care and treatment, were supported by substantial credible evidence in the record, are not erroneous, and do not constitute a clear abuse of discretion. In re Civil Commitment of W.X.C., 407 N.J. Super. 619, 630 (App. Div. 2009), aff'd, 204 N.J. 179, 205 (2010). Judge Mulvihill properly evaluated the actuarial and expert evidence.
We also reject D.K.R's claim that his right to confrontation was violated by the admission of his progress notes. Judge Mulvihill ruled that those documents would be admitted subject to hearsay exceptions. There is no evidence that Judge Mulvihill considered inadmissible hearsay evidence when making his determination.