IN THE MATTER COMMITMENT OF H.X.M.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1188-03T21188-03T2

IN THE MATTER OF THE COMMITMENT

OF H.X.M. SVP-292-02.

__________________________________

 

Submitted: September 26, 2007 - Decided:

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-292-02.

Ronald K. Chen, Public Advocate, attorney for appellant, H.X.M. (Alison Perrone, Designated Counsel, on the brief).

Anne Milgram, Attorney General, attorney for respondent, State of New Jersey (Patrick DeAlmeida, Assistant Attorney General, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

H.X.M. appeals from the October 15, 2003 order finding him subject to involuntary civil commitment to the Special Treatment Unit (STU) pursuant to the Sexually Violent Predators Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. We affirm.

In 1961, H.X.M. pled guilty to rape. H.X.M. was accused of choking the female victim so she would submit. He was sentenced to the New Jersey State Hospital (Ancora) for an "indefinite time" consistent with a pre-sentencing evaluation and recommendation that he be committed to a state hospital for prolonged treatment and care.

In December 1973, H.X.M. was released on parole. Approximately six months later, H.X.M. was arrested for the rape of a sixty-one year old woman. Following the attack, the victim exhibited marked redness, discoloration and swelling of the left jaw. H.X.M. was convicted of assault with intent to rape. He was sentenced to an indeterminate term not to exceed twelve years at the Adult Diagnostic and Testing Center (ADTC). Parole on the 1961 offense was also revoked.

As his term of imprisonment drew to a close, Dr. Vivian Shnaidman conducted a psychiatric termination evaluation of H.X.M. Based on this interview, Dr Shnaidman developed the following diagnostic impression: paraphilia NOS, impulse control disorder, alcohol dependence in institutional remission, antisocial personality disorder, prostate cancer in remission, and emphysema. She also concluded that he met the criteria of a sexually violent predator and involuntary civil commitment pursuant to the SVPA. Two other ADTC therapists opined that H.X.M. should be considered a high risk for sexual reoffense due to his diagnoses and the results of two commonly used tests: the MnSOST-R and the Static 99.

On December 13, 2002, a temporary order of commitment was entered. After several adjournments, the final hearing required by N.J.S.A. 30:4-27.28g was conducted on October 15, 2003. H.X.M. refused to participate in the psychiatric interview conducted in March 2003. Accordingly, Dr. Voskanian based his evaluation on prior records created and maintained throughout H.X.M.'s involvement in the criminal justice system. Similarly, H.X.M. refused to participate in interviews with Natalie Barone, a psychologist, or Luis Zeiguer, a psychiatrist. They also prepared their reports based on a review of H.X.M.'s records. At the hearing, Dr. Barone and Dr. Zeiguer testified that the reports reviewed and relied on by them were the type of records relied on by professionals in their fields. H.X.M. also refused to attend the hearing.

Dr. Barone testified that H.X.M. presents the following diagnostic profile: Axis I, paraphila NOS; Axis II, antisocial personality disorder. She further opined that his reoffense within six months of release provided strong evidence of compulsion. She also testified that H.X.M. was unable to resist his sexual urges despite his previous hospitalization and he even continued to have sexual relationships while hospitalized. Thus, H.X.M. cannot control his deviant sexual urges even in controlled environments with consequences.

Dr. Barone testified the sexual sadism diagnosis is evidenced by the use of much more force than was required to gain compliance from his first rape victim and from the injuries sustained by his sixty-one year old victim. Dr. Barone explained that these sadistic elements increase H.X.M.'s risk for sexually reoffending and suggest a sexual deviancy that is so ingrained that it is more challenging to treat.

Dr. Barone utilized the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), which provides information about present personality functions and any kind of psychiatric symptoms a person may be experiencing. She found that H.X.M. exhibited a moderate elevation on the psychopathic deviance scale, which suggests that H.X.M. is "somewhat impulsive, immature." Furthermore, H.X.M. has a "general orientation toward a pleasure seeking, self-gratification" and tends to be self-centered and manipulative. These results further supported her diagnosis of antisocial personality disorder.

During the Multiphasic Sex Inventory-II (MSI-II), H.X.M. admitted his voyeuristic tendencies and acknowledged that he has engaged in peeping behaviors in the past. Dr. Barone explained that voyeuristic tendencies are another type of paraphilia and the more types of paraphilia a person exhibits, the more difficult treatment becomes and the more likely that person will reoffend. Dr. Barone noted that treatment would be further challenged by the fact that H.X.M. minimizes his past sexual deviancy and uses justifications; therefore, his lack of motivation for treatment is in itself a risk factor. Dr. Barone also applied the Bumby Cognitive Distortion Scale. H.X.M. did not complete the molest scale, nevertheless, he did endorse four of the thirty-six cognitive distortions on the rape scale. Dr. Barone testified that H.X.M. scored a seven on the Static 99, which placed him in a high risk category.

Dr. Barone testified that H.X.M. has not fully benefited from the treatment that he has received and he continues to have some distorted perceptions around rape. Dr. Barone described H.X.M.'s treatment at ADTC as "essentially limited," which was based largely upon Dr. Rambus' report regarding H.X.M.'s progress.

Dr. Barone testified that H.X.M. "clearly has a deviant sexual attraction toward forcing sexual activity on nonconsenting individuals," which he has acted on repeatedly. In addition, she found H.X.M. had a way of functioning in the world, which lacks remorse and disregards the welfare of other people. He has had difficulty controlling his impulses and aggression. The psychologist testified that these two diagnoses increase the risk of sexual recidivism.

Dr. Barone testified that she was unable to form an opinion within a reasonable degree of psychological certainty as to the risk that H.X.M. would reoffend unless confined to a secure facility because H.X.M. suffered from several medical conditions that "may or may not affect his sexual and nonsexual functional capacity." Dr. Barone noted that H.X.M. has been diagnosed with emphysema and prostate cancer and that such conditions could affect H.X.M.'s physical capacity to act on his deviant sexual urges. Thus, without more medical data she could not determine whether it actually had affected his capability. However, absent any medical concerns, Dr. Barone testified that H.X.M. was a high risk due to his sexual history, including the violent rapes and his justifications, lack of motivation, his voyeuristic tendencies, sadistic elements, distorted thinking, not benefiting from treatment, sexual pathology, plus antisocial personality disorder.

Dr. Barone acknowledged that age can be a mitigating factor in terms of risk assessment because an increase in age has shown to be related to a decrease in sexual recidivism rates. In addition, Dr. Barone noted that age, in conjunction with antisocial personality disorders, has a "burnout" effect so that as a person becomes older, usually starting around forty, they demonstrate fewer antisocial behavior attributes.

Dr. Zeiguer did not interview H.X.M., but they met briefly. He, unlike Dr. Barone, was able to provide an opinion regarding H.X.M.'s risk of reoffense. Dr. Zeiguer testified that his meeting confirmed what he had heard from the recreation staff regarding H.X.M.'s physical appearance, specifically that H.X.M. was "perky and agile and -- and bouncy in his movements." Dr. Zeiguer also reported that H.X.M. was well developed and in reasonably good shape.

Dr. Zeiguer reviewed H.X.M.'s medical records and confirmed that H.X.M. had a history of acute intestinal obstruction, shortness of breath, bronchial asthma, and emphysema. H.X.M. also had radiation for carcinoma of the prostate in 2001. However, the doctor was not aware that H.X.M. underwent treatment for epididymitis, or inflammation of the testicle. Dr. Zeiguer testified that the emphysema would likely not interfere with H.X.M. performing intercourse because the aerobic effect is not high enough. He also noted that patients will often opt for radiation to treat prostate cancer instead of a prostatectomy because it does not cause the same type of problems with regard to sexual function. Dr. Zeiguer also testified that H.X.M. had wanted to be tested for erectile function, but the doctor was not sure whether that was an indication that he was having a problem in that area or not. However, the doctor did not find anything in the record that indicated that H.X.M. could not function sexually and would not be physically able to assault a woman.

Dr. Zeiguer testified that the 1973 parole and 1974 sexual assault demonstrated that H.X.M. was able to get himself released on parole by a parole board that included two psychiatrists. He also found that the commission of another sexual offense while on parole meant H.X.M. was willing to risk imprisonment for the rest of his life in order to rape.

Dr. Zeiguer also testified that H.X.M. committed sexual offenses while incarcerated, including sodomy of a sixteen year old schizophrenic boy in Ancora. He opined that this behavior reflects his current severe antisocial personality disorder in which he is aggressive and has no regard for other people. In addition to severe antisocial personality disorder, Dr. Zeiguer also diagnosed H.X.M. with paraphilia NOS and possibly sadism, or a "sadistic rapist who's anti-social."

Dr. Zeiguer explained the significance of the diagnoses. He noted that those afflicted with severe antisocial personality disorders do not learn from their experience and they are not deterred by punishment. H.X.M. risked everything for nonconsensual sex from young females, old females, young men, and older men.

Dr. Zeiguer stated that there is no known treatment for the combination of paraphilia and antisocial personality disorder. He acknowledged that each can be controlled through treatment, but H.X.M. has particular difficulty controlling his actions as demonstrated by the reoffense while on parole. Dr. Zeiguer concluded that there is a substantial risk that H.X.M. would reoffend in the foreseeable future unless confined to a secure facility because age and illness have not incapacitated him yet and his personality function has not changed.

H.X.M. did not attend the hearing. He did not present any witnesses or submit any evidence at the hearing.

In her oral opinion, Judge Perretti found by clear and convincing evidence that H.X.M. had been convicted twice of sexually violent offenses. She also found that H.X.M. suffers from abnormal mental conditions and personality disorders, which predispose him to commit sexually violent acts, and adversely impact his cognitive, volitional and emotional capacities. He also has serious difficulty controlling his sexual behavior and consequently it is highly likely that he will recidivate if not confined for further treatment.

Judge Perretti found that the first criteria of the statute was met because it was clear from the judgment of convictions that H.X.M. had been convicted of at least two sexually violent offenses, the 1961 and the 1974 rape offenses. In addition, H.X.M.'s rape offenses were both violent, "vastly more violent than was necessary to secure his immediate goal of rape." Therefore, H.X.M.'s violent rapes in conjunction with his long criminal record establishes that H.X.M. has a history of sexually violent criminal behavior.

Judge Perretti also recounted the evidence that H.X.M. was making limited progress at treatment. Additionally, Judge Perretti highlighted the fact that, although H.X.M.'s cancer may have affected his sexual function, it has been reported and there is evidence that lack of penile function does not necessarily rule out sexually violent criminal behavior. Based upon the evidence of H.X.M.'s behavior at the ADTC, including sodomy of several inmates, Judge Perretti stated that H.X.M.'s "nonadaptive behavior at the ADTC . . . cast substantial light on the inability of the Respondent to control himself, not only his sexual behavior but his genuine -- genuine behavior. He doesn't have much control."

Citing the testimony of Drs. Barone and Zeiguer, Judge Perretti found that the combination of paraphilia and antisocial personality disorder leads to particularly bad prognosis with "no known treatment" and an "infinitesimal chance." Judge Perretti also concluded H.X.M. has difficulty in controlling his sexual behavior, and the testimony is uncontradicted that H.X.M.'s age and illness have not incapacitated him yet. Therefore, there is a substantial risk of reoffense and Judge Perretti committed H.X.M. with a review to be scheduled in one year.

H.X.M. argues that the ADTC evaluations prepared by non-treating experts, as well as a clinical evaluation by a non-treating expert, were admitted in error by the trial court because they constitute hearsay and do not comply with N.J.R.E. 703. Furthermore, H.X.M. argues that the court erred in relying upon the testimony of Dr. Barone and Dr. Zeiguer because their testimony was based in part on the opinions of non-testifying experts in the form of the clinical certificate reports and the ADTC evaluations.

Portions of the ADTC evaluations, as well as the clinical certificates, are admissible for their truth as exceptions to hearsay. N.J.R.E. 803(c)(6). In addition, the ADTC evaluations fall within N.J.R.E. 703 and therefore, may be relied upon by testifying experts even if they are otherwise not admissible. The testifying experts also did not impermissibly rely primarily on the clinical certificate supporting reports.

Any statements made by H.X.M. to the doctors during their interviews are admissible hearsay because the statements qualify as party admissions or as statements for purposes of medical diagnosis or treatment. N.J.R.E. 803(b),(c)(4); 805. For example, in In re Civil Commitment of A.X.D., 370 N.J. Super. 198 (App. Div. 2004), this court noted that STU reports

themselves were admissible for their truth under applicable exceptions to the hearsay rule. See N.J.R.E. 805. The reports of the STU treatment teams were business records, admissible under N.J.R.E. 803(c)(6), which could be considered for their truth insofar as they factually reported [the committee's] statements or refusals to discuss certain issues. [The committee's] statements made to the treatment team (including his refusal to discuss certain important issues) were admissible as statements of a party. N.J.R.E. 803(b)(1).

[Id. at 202.]

However, any diagnoses admissible as exceptions to hearsay must also conform with N.J.R.E. 808. We have determined that "routine" findings of medical experts contained in medical records were admissible as business records, while findings of "diagnoses of complex medical conditions" should be excluded. Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 282 (App. Div.) (quoting State v. Matulewicz, 101 N.J. 27, 32 n.1 (1985)), certif. denied, 141 N.J. 95 (1995). Therefore, we have held that it is improper for a trial judge to consider for their truth any complex diagnoses that are contained within medical records to the extent that those diagnoses are contested. A.X.D., supra, 370 N.J. Super. at 202.

In this case there was no contrary evidence or expert testimony that contested the diagnoses contained within the reports, so it was not improper for the trial judge to rely upon the opinions even if they did contain "complex diagnoses." In re Civil Commitment of J.M.B., 395 N.J. Super. 69, 95 (App. Div. 2007). H.X.M. did not present any expert witnesses at the hearing, nor did he submit any exhibits.

Although the experts did not personally interview H.X.M., their failure to do so was due to H.X.M.'s own waiver. This court will not allow the committee "to reject examination and then complain about the State's failure to present more recent testimony." In re Civil Commitment of A.H.B., 386 N.J. Super. 16, 28 (App. Div.), certif. denied, 188 N.J. 492 (2006). Instead both doctors relied upon H.X.M.'s records, including documents that they testified were typically relied upon by members of their profession. Furthermore, Dr. Zeiguer testified that it is not unusual in his profession to make a diagnosis without ever having interviewed the patient because the symptoms are the crimes and the patient's past actions. Indeed, it is impossible to make a diagnosis without the patient's records. Consequently, the testifying experts relied predominantly on records that documented H.X.M.'s actions to form their opinions.

Finally, it is clear from the record that Judge Perretti knew some of the exhibits should only be considered in conjunction with her evaluation of the doctors' credibility. Judge Perretti stated:

Also, it is necessary for these things to come into evidence if they have been relied upon by experts not necessarily, but possibly, not necessary for the truth of the contents therein, but as they bear upon the opinions of the experts made in reliance upon them. So there are a great number of different reasons why all of these documents are admissible, although for different reasons.

H.X.M. also argues that the State failed to establish by clear and convincing evidence that he had the physical capacity to commit a sexually violent act. We disagree.

In reviewing a judgment for commitment under the SVPA, the scope of appellate review is "extremely narrow" and the trial court's decision should be given the "'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) (citing State v. Fields, 77 N.J. 282, 311 (1978)).

Under the SVPA, the State must prove by clear and convincing evidence that the person suffers from a mental abnormality, or personality disorder in which the

individual has serious difficulty controlling his or her harmful sexual behavior such that it is highly likely that person will not control his or her sexually violent behavior and will reoffend.

[In re Commitment of W.Z., 173 N.J. 109, 133 (2002).]

Evidence is clear and convincing when it produces in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations. State v. Hodge, 95 N.J. 369, 376 (1984). The SVPA's focus is "on the subject's current mental condition and the present danger to the public, not on punishment." In re Commitment of P.C., 349 N.J. Super. 569, 582 (App. Div. 2002). The designation "likely to engage in acts of sexual violence" for purposes of the SVPA means "the propensity of a person to commit acts of sexual violence is of such a degree as to pose a threat to the health and safety of others." N.J.S.A. 30:4-27.26.

Judge Perretti considered H.X.M.'s age and health. She emphasized that although H.X.M.'s cancer may have affected his sexual function, it has been reported and there was testimony that lack of penile function does not necessarily rule out sexually violent criminal behavior. She also recounted evidence that H.X.M. was making limited progress at treatment. Additionally, Judge Perretti found that H.X.M.'s violent sexual behavior continued while he was in treatment; thus, he demonstrated an ongoing inability to control himself.

Although both experts testified that age may mitigate the risk of reoffense, the treatment records belie the notion that H.X.M. is not capable of engaging in sexually violent behavior. Indeed, the treatment records reveal no progress in treatment and contain observations of continuing antisocial behavior.

We, therefore, find that the State carried its substantial burden of proof and the findings of the trial judge are well-supported in the record. The October 15, 2003 order is, therefore, affirmed.

Affirmed.

(continued)

(continued)

16

A-1188-03T2

RECORD IMPOUNDED

October 9, 2007