June 3, 2013
IN THE MATTER OF THE CIVIL COMMITMENT OF G.R.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: May 15, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-504-08.
Joseph E. Krakora, Public Defender, attorney for appellant G.R. (Thomas G. Hand, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (Melissa H. Raksa, Assistant Attorney General, of counsel; David L. DaCosta, Deputy Attorney General, on the brief).
Before Judges Axelrad, Sapp-Peterson and Haas.
In this consolidated appeal, G.R. appeals from the April 2, 2009 order of the Law Division that committed him to the Special Treatment Unit (STU), a secure custodial facility for the treatment of persons in need of involuntary civil commitment, as a sexually violent predator pursuant to the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38, and the March 24, 2010 order that continued his commitment following an annual review hearing. He contends the State failed to prove by clear and convincing evidence that he was a sexually violent predator at his initial commitment hearing in 2009. In the second appeal, G.R. contends the State failed to sustain its burden of proof in the review proceeding because it relied on inadmissible hearsay and unproven allegations, and the court erred in crediting the State's expert witnesses because their testimony was based, in part, on a non-conviction offense.
We do not address G.R.'s challenges to the initial commitment hearing as we deem them moot. The only relevant issue is whether G.R. currently meets the statutory prongs for civil commitment under the SVPA. See In re Civil Commitment of E.D., 183 N.J. 536, 550-51 (2005) (holding that the "standard of proof and the burden of meeting it at each periodic review hearing must be identical to that required in the initial proceeding [to commit]") (internal quotation marks and citation omitted). We disagree with G.R.'s challenges to the review hearing and affirm the orders in both appeals.
G.R. is a forty-three-year-old convicted sexual molester of adult women. He also has been convicted of a multitude of non-sexual offenses including possession of a CDS, possession of a prohibited weapon and devices, robbery, receiving stolen property, simple assault, theft, criminal mischief, and aggravated assault with a deadly weapon.
On December 1, 1997, G.R. was charged with sexually assaulting a fourteen-year-old girl. The girl explained to police that she had asked G.R. for directions and offered him a ride. She reported that he threatened her with a screwdriver, pulled her hair, hit her, and assaulted her sexually. However, she only made the accusation after she was found by police sleeping in a stolen car. G.R. admitted to having sex with her but maintained it was consensual. On February 6, 1998, the charge was no billed.
On May 24, 2005, G.R. committed the first of two predicate offenses, when he sexually assaulted L.B., an adult female. The victim claimed she had just met G.R. when he proposed hanging out and getting "high together." She reported that after they arrived at the pier, G.R. brought up the idea of trading sex for drugs. However, the victim was not interested, so she started to walk away from him, and in response G.R. grabbed, punched, and choked her unconscious, removed her clothes, and orally, anally, and/or vaginally raped her.
One week later, on May 31, 2005, G.R. beat and raped a twenty-two-year-old female. The victim admitted she had asked G.R. for a "hit" of his crack pipe, and he told her to wait until they got to the beach. After arriving at the beach, he punched her in the head twice, put her in a headlock, and forced her to fellate him. At some point G.R. ripped off her clothes. The victim then threw sand in his face and attempted to flee, but G.R. caught her and raped her vaginally and anally.
On January 30, 2006, G.R. pled guilty to two counts of second-degree sexual assault, and the other charges were dismissed as part of a plea agreement. On May 3 and June 22, 2006, G.R. was evaluated at the Adult Diagnostic and Treatment Center (ADTC) by Dr. Donna LoBiondo, Ph.D., a psychologist. Dr. LoBiondo concluded that G.R.'s behavior was "clearly repetitive" but there was "insufficient evidence from interview, testing, and reviewed documentation that [G.R.]'s criminal sexual behavior qualifies as compulsive under the Sex Offender Act." The psychologist found G.R. "likely committed these offenses out of a sense of entitlement and desire to gratify himself at the expense of others, consistent with his antisocial orientation."
G.R. was sentenced on September 1, 2006. He received two concurrent, four-year custodial terms subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On June 2, 2008, Dr. Christie L. Kokonos, Psy.D., a psychologist, evaluated G.R. and concluded that G.R. met "the criteria for referral as a repetitive and compulsive violent sexual offender who requires formal treatment prior to being released back into society." She recommended the State consider pursuing civil commitment under the SVPA before G.R. was released from jail.
In September 2008, the State filed a petition for civil commitment pursuant to the SVPA. On September 24, 2008, a temporary order of commitment was entered. G.R.'s initial commitment hearing was held before Judge John McLaughlin on March 23, 2009. At the hearing, Dr. Howard Gilman, M.D., a psychiatrist, and Dr. Rosemarie V. Stewart, Ph.D., a psychologist, testified on behalf of the State. No witnesses were called on G.R.'s behalf.
Dr. Gilman diagnosed G.R. with multiple substance dependence, anti-social personality disorder, and HIV. He noted that G.R. sexually assaulted the two victims knowing his HIV status, which is an indication of the virulence of his antisocial personality disorder. He opined that G.R. met the criteria for civil commitment based on his history of two sexual assaults in 2005, history of arrest for sexual assault in 1997, extensive criminal history consistent with antisocial personality disorder, history of multiple substance dependence, and actuarial scores.
Dr. Stewart recommended G.R. for civil commitment because he suffers from Personality Disorder NOS which predisposes him to commit sexually violent acts, as defined by the SVPA. Based on G.R.'s moderate-high actuarial scores, violent sexual offending history, lack of participation in sex offender treatment, untreated substance abuse problem, propensity to offend while under legal scrutiny, and antisocial tendencies, Dr. Stewart opined that G.R. presented a significant risk for reoffending in the future.
In a comprehensive oral decision of April 2, 2009, Judge McLaughlin found the State clearly and convincingly proved the essential elements for a civil commitment under the SVPA: G.R. committed the predicate sexual offenses, continues to suffer from mental abnormalities and personality disorders, "would have seriously difficulty in controlling his sexually violent behavior" and "is highly likely to re-offend in the reasonably foreseeable future." The judge entered a memorializing order on that date committing G.R. to the STU with a review scheduled for March 15, 2010.
G.R.'s review hearing was held on March 16, 2010, before Judge McLaughlin. Dr. Shawn McCall, Psy.D., an STU psychologist, and Dr. Maryanne DeSantis, M.D., a psychiatrist, testified on behalf of the State. Dr. Timothy Foley, Ph.D., a psychologist, testified on G.R.'s behalf.
Drs. McCall and DeSantis based their assessments on their respective interviews of G.R., treatment records, as well as discovery information that provides historical perspectives, all of which are routinely utilized by professionals in their field; however, each made independent diagnoses. Dr. McCall testified consistently with his report of March 4, 2010. Dr. McCall reported that G.R. regularly attended treatment group but stated that the STU had concerns that G.R. was trying to rush through the treatment program as opposed to being invested and making meaningful changes in his life. He opined that "it was too early in the treatment process to consider discharge" because G.R. had not acknowledged his sexual offending, continued to assert that the victims' behavior was consensual, and thus had not developed any relapse prevention techniques. He also related G.R.'s treatment providers' assertions that G.R. tends to be somewhat manipulative during the treatment sessions.
Dr. McCall diagnosed G.R. with antisocial personality disorder (with narcissistic features) because there was evidence of him having a conduct disorder prior to the age of fifteen, but even if a conduct disorder had not been present prior to that age, he would have still diagnosed G.R. with personality disorder NOS with antisocial and narcissistic features. He further opined that G.R. minimizes crimes, tends to be impulsive, has an extensive criminal history, is not swayed by legal sanctions or concerned with the feelings and experiences of others, and seems to have a sense of entitlement. Dr. McCall also diagnosed G.R. with cannabis and cocaine dependence. It was recommended by the Treatment Progress Review Committee, of which Dr. McCall was a member, that G.R. be advanced to phase two of treatment, which entails the individual starting to understand that treatment would benefit him.
Dr. DeSantis testified consistently with her report of March, 11, 2010. She explained she discussed G.R.'s sexual offenses with him, and G.R. admitted his offense against L.B. started out as consensual and became non-consensual, but denied non-consensual intercourse with the twenty-two-year-old victim. Dr. DeSantis diagnosed G.R. with polysubstance dependence in full and sustained remission in a controlled environment, narcissistic personality disorder, and personality disorder NOS with strong traits of antisocial personalities.
She explained that G.R.'s polysubstance dependence causes him not to be able to think clearly and diminishes his impulse control. However, his polysubstance dependence in and of itself does not cause him to commit sexual offenses. She could not validate a diagnosis of antisocial personality because she did not find evidence that G.R. had a conduct disorder prior to the age of fifteen. However, Dr. DeSantis found that all the other criteria of that diagnosis were met, such as "failure to conform to social norms with respectful, lawful behaviors." She explained that G.R. had been arrested numerous times, used aliases, was impulsive, admitted that "he had to show his aggressiveness to get the respect that he needed in the streets, " and his lack of remorse.
Dr. DeSantis opined that it was "highly likely" that G.R. would reoffend in the foreseeable future unless placed in a secure facility for treatment. She based her conclusion on his history of sexual and non-sexual offenses; his age; the fact his victims were strangers, which makes it more likely he would reoffend; his lack of remorse; and his score of a five on the Static-99, which places him in the medium to high-risk category for reoffending.
Dr. Foley based his assessment on an interview of G.R. and review of similar documentation as the State's experts. He diagnosed G.R. with polysubstance dependence in institutional remission. Because he found no evidence of conduct disorder before the age of fifteen, Dr. Foley did not diagnose G.R. with antisocial personality disorder. Dr. Foley scored G.R. a four or five on the Static-99-R, which he acknowledged was "higher than average, " but he was unable to correlate that with recidivism statistics.
Dr. Foley testified that the primary treatment emphasis for G.R. should be substance abuse treatment at an in-patient program because it would reduce his lack of volitional control and because his sexual offenses are secondary to his polysubstance dependence. However, on cross-examination, Dr. Foley conceded that except for having a conduct disorder prior to the age of fifteen, G.R. met all the other diagnostic criteria for a diagnosis of antisocial personality disorder. He admitted that defendant would only be ready to be released conditionally subject to at least a year of residential drug treatment with a sexual offender component because if G.R. were currently released, "he would be at high-risk to use drugs, and after he uses drugs, he's pretty unpredictable" and "all bets are off."
Judge McLaughlin rendered a comprehensive oral decision on March 22, 2010, which canvassed the procedural and documentary record. He also outlined in detail the testimony of the experts, noting all three testified that "that in [G.R.'s] present state he is highly likely to reoffend in the reasonably foreseeable future." The judge found the State clearly and convincingly proved that G.R. was convicted of a sexually violent predicate offense; that he suffers from a personality disorder as diagnosed by Dr. DeSantis and acknowledged by Dr. Foley; that he has polysubstance dependence as diagnosed by Drs. DeSantis and Foley; and that these disorders cause him to have seriously difficulty controlling his sexually violent behavior. The judge further noted G.R.'s extensive non-sexual offense history, which included drug convictions and convictions for violent offenses, and G.R.'s score of four on the Static 99R, which places him in the category of those who are moderate-to-highly likely to reoffend. Judge McLaughlin concluded the State satisfied its burden of proving that G.R. met the criteria for commitment under the SVPA, commenting "[h]e needs sex offender treatment. He needs substance abuse treatment. Right now he needs them in a controlled environment." Accordingly, the judge entered an order the same date continuing G.R.'s commitment in the STU, with a review scheduled for March 4, 2011.
On appeal, G.R. asserts the following arguments:
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.
A. Courts Should Apply Analogous Criminal Due Process Protections to SVPA Hearings.
B. Application of Criminal Due Process Protections to Civil Cases.
C. Testifying Experts Should Not Be Allowed To Consider Facts Outside of Convictions in Arriving At Diagnoses and Determining Risk.
D. The State's Experts Cannot Be Used As a Conduit For The Admission Of Inadmissible Evidence Through The Backdoor of R. 704.
E. 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, But Not Treatment Records.
F. The Same Court Cannot Act As Both Gatekeeper and Factfinder In An SVPA Proceeding.
G. The SVPA Hearing Violated G.R.'s Federal and Substantive Due Process Rights.
G.R.'S INVOLUNTARY COMMITMENT UNDER THE SVPA VIOLATES THE UNITED STATE CONSTITUTION, ARTICLE I, SECTION 10, CLAUSE 1 AND THE NEW JERSEY CONSTITUTION ARTICLE IV, SECTION 7, PARAGRAPH 3 (EX POST FACTO CLAUSES) BECAUSE THE EXPERT'S 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 G.R. SHOULD HAVE BEEN INVOLUNTARILY COMMITTED.
The Supreme Court has repeatedly emphasized that the Legislature's goal for the SVPA was to create a civil, not penal, regulatory scheme. See
In re Civil Commitment of W.X.C. , 204 N.J. 179, 188 (2010), cert. denied, __U.S. __, 131 S.Ct. 1702, 179 L.Ed.2d 635 (2011);
In re Civil Commitment of J.M.B. , 197 N.J. 563, 599, cert. denied, __U.S. __, 130 S.Ct. 509, 175 L.Ed.2d 361 (2009); State v. Bellamy, 178 N.J. 127, 137-38 (2003). Its purposes are regulatory, because "the statute is designed to protect the public from dangerous predators and to treat sex offenders who are, by definition, suffering from a mental abnormality." See
W.X.C ., supra, 204 N.J. at 188. Those are legitimate legislative goals, which protect the community and also provide care to its citizens who are in need of treatment and who are unable to secure it for themselves. See In re Commitment of W.Z. , 173 N.J. 109, 125 (2002).
Under the SVPA, an involuntary civil commitment can be ordered following an offender's service of a sentence, or other criminal disposition, when he or she "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.
At the commitment hearing, the State must prove by clear and convincing evidence that the individual poses:
a threat to the health and safety of others because of the likelihood of his or her engaging in sexually violent acts[, ] . . . by demonstrating that the individual has serious difficulty in controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend.
[W.Z., supra, 173 N.J. at 132. See also In re Civil Commitment of J.H.M. , 367 N.J.Super. 599, 608 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004); N.J.S.A. 30:4-27.32(a).]
The range of appellate review of judgments of civil commitment is particularly narrow.
In re Civil Commitment of V.A. , 357 N.J.Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). In light of the trial court's expertise in handling these cases, its "determination should be accorded 'utmost deference' and modified only where the record reveals a clear abuse of discretion."
In re Commitment of J.P. , 339 N.J.Super. 443, 459 (App. Div. 2001) (quoting State v. Fields, 77 N.J. 282, 311 (1978)). See also
In re Civil Commitment of A.E.F. , 377 N.J.Super. 473, 493 (App. Div.), certif. denied, 185 N.J. 393 (2005). "The appropriate inquiry is to canvass the . . . 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).
Appellant does not dispute that he met the first prong of the test for civil commitment, namely that he committed a sexually violent offense. He primarily contends the State violated his due process rights by relying on hearsay evidence. Specifically, he claims the opinions of the State's experts were deficient because they "relied on unproven unreliable hearsay as 'facts' and then interpreted those 'facts' to make conclusions about [his] mental illness and safety risk."
Moreover, G.R. contends the trial court's reliance on his 1997 arrest, as testified to by the State's experts in both the initial and review commitment hearings and through the admission of the fourteen-year-old victim's statements, violated his constitutional rights. According to G.R., Dr. McCall improperly assumed the victim's story was true and relied on this charge in mischaracterizing him as manipulative and in formulating his opinion. G.R. further urges that State v. Hupka, 203 N.J. 222 (2010), "provides the better procedural process to be followed in SVPA cases" and mandates two options to the State regarding his 1997 arrest: either ignore the arrest for diagnosis/risk purposes or produce evidence of the facts underlying the arrest.
We are not persuaded by these arguments. G.R.'s reliance on Hupka is unavailing. Hupka is a criminal case that involved whether a police officer's conviction of fourth-degree sexual assault included factual circumstances that triggered his permanent disqualification from holding public employment in the future. Supra, 203 N.J. at 241-42. Because it addressed the narrow issue of whether information found in a presentence report may be used to aid a court's determination of whether an offense "involved or touched" a defendant's office for purposes of applying a criminal statute, it is factually and legally inapposite to an SVPA case.
However, in assessing a Megan's law classification, the Court has balanced an individual's due process rights and right to fundamental fairness with the community's right to protect itself against the risk the individual may commit another sexual offense, and has held that a nonconviction may be considered in determining a convicted sex offender's tier classification and the State's use of documentary hearsay evidence to prove that alleged offense does not offend procedural due process and the doctrine of fundamental fairness.
In re C.A ., 146 N.J. 71, 109-10 (1996). Thus under C.A., we are satisfied defendant's 1997 arrest was appropriately considered by the experts and court in assessing G.R.'s risk of future sexual recidivism without violating his rights. Nevertheless, it is clear from the record that the early nonconviction played only a minor part in the ultimate conclusion that G.R. met the statutory criteria for continued commitment pursuant to the SVPA. Even without that incident, the two violent sexual assaults in 2005, G.R.'s extensive non-sexual criminal history that include numerous violent crimes and drug offenses, his history of multiple substance dependence, and his objective test scores clearly evidence compulsive and antisocial behavioral tendencies and a high risk to reoffend if released from the STU.
We discern no other procedural irregularities, constitutional infirmities, or violation of G.R.'s substantive rights in the review hearing. In
In re the Commitment of G.G.N. , 372 N.J.Super. 42, 57 (App. Div. 2004), we rejected an attempt, made here again by G.R., to apply to SVPA proceedings a Crawford confrontation clause challenge.
Moreover, all of the testifying experts, including G.R.'s, diagnosed him based on their interviews and reviews of numerous and appropriate sources of information routinely relied on by experts in the field. N.J.R.E. 703. The similar diagnoses and conclusions of the experts were independently arrived at by each expert based on appropriate past and present data. In fact, the experts were essentially in agreement as to the diagnoses except that the defense expert found G.R.'s personality disorder was overridden by his polysubstance abuse and recommended at least a year of in-patient substance abuse treatment with a sexual offender treatment component as an alternative to the STU. Moreover, G.R.'s own expert conceded that if G.R. were to be released, "he would be at high-risk to use drugs, " after which point "all bets are off."
Nothing in our opinion in In re Civil Commitment of E.S.T. , 371 N.J.Super. 562 (App. Div. 2004), prohibits an expert from relying on a statement made by a defendant to an ADTC evaluator. Instead, our decision prohibits the State from relying on forensic expert opinions from psychiatrists who never treated the inmate, but who merely signed the clinical certificates that led to the initial commitment order. Id. at 573. We held that "fundamental fairness" prohibits the State from eliciting testimony from a treating psychiatrist about the hearsay opinion of a forensic expert who does not testify. Id. at 575.
When we held in E.S.T. that the opinion of a non-testifying expert cannot be "bootstrapped into evidence" in that fashion, ibid., we specifically held otherwise concerning hearsay evidence contained in "pre-sentence reports and other investigative materials." Id. at 576. We concluded that hearsay opinion from those sources was indeed admissible "but only as a basis for the expert's opinion, " and not as "substantive evidence." Ibid.; see
In re Civil Commitment of A.X.D , 370 N.J.Super. 198, 201-02 (App. Div. 2004) (holding that experts are allowed to rely on STU reports at a SVPA commitment hearing if they ordinarily relied on such information to assist them in reaching a diagnosis).
Turning to G.R.'s second point, we find no ex post facto violation of the SVPA statute as applied. The Court has "recognized that by utilizing confinement as part of treatment, the SVPA has some punitive impact, and . . . this aspect of the statute is 'onerous.'"
W.X.C. , supra, 204 N.J. at 189. However, the SVPA does not violate the ex post facto clause since it is "simply an 'inevitable consequence of the regulatory provisions.'" Ibid. Moreover, "[i]n light of the clear regulatory goals that our Legislature sought to achieve through the SVPA, the choice to include confinement as part of the means through which those goals are achieved does not transform the statute automatically into one that is punitive." Ibid.; see
J.M.B. , supra, 197 N.J. at 601 (reiterating that the SVPA is remedial and not punitive).
Finally, G.R. contends that the State failed to prove that he was subject to continued SVPA commitment. We reject this argument as without merit. Judge McLauglin's findings are well-documented and supported by the record as to all the statutory prongs. We give utmost deference to the trial court's determinations and reverse only for a clear abuse of discretion. V.A., supra, 357 N.J.Super. at 63. The record amply supports Judge McLaughlin's findings that the requirements for continued commitment were proven by clear and convincing evidence. W.Z., supra, 173 N.J. at 130.