IN THE MATTER CIVIL COMMITMENT OF D.H.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4337-04T24337-04T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

D.H.S.

__________________________________

 

Argued October 3, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. 262-02.

John W. Douard, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

Mary Beth Wood, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Attorney General, attorney).

PER CURIAM

Appellant, D.H.S., who is now thirty-five years old, appeals from the February 8, 2005 judgment ordering his continued commitment to the Special Treatment Unit (STU) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38 until the next review hearing on January 12, 2006. On July 16, 2004 we affirmed, in an unpublished opinion, Judge Perretti's original September 6, 2002 order civilly committing D.H.S. under the SVPA finding that D.H.S. "is a violent sexual predator who suffers from a present mental condition that creates a strong likelihood of future sexually violent behavior." In re Commitment of D.H.S., No. A-907-02T2 (App. Div. July 16, 2004). The judgment now under review was entered following a review hearing. On this appeal, D.H.S. argues that some of the testimony of Dr. Stanley Kern, the State's psychiatrist, and Dr. Eleni Marcantonis, the State's psychologist, relied on treatment notes and records which constitute objectionable hearsay and that the State presented insufficient evidence to support D.H.S.' continued commitment. We have thoroughly reviewed the record and we find that appellant's arguments lack merit. We are satisfied that the testimony of Dr. Kern and Dr. Marcantonis did not constitute objectionable hearsay and that Judge Freedman's findings are amply supported by competent evidence. Accordingly, we affirm.

We stated D.H.S.' history of violent behavior, which included three horrific violent sexual assaults, in our July 16, 2004 opinion which we repeat here.

He committed his first sexual assault at age nine, when he and his male cousins and brothers gang-raped a sixteen-year-old cousin. As a teenager, he was arrested thirty-three times. He was adjudicated delinquent for simple assault, theft from a person, robbery, burglary, unlawful taking of a means of conveyance and receiving stolen property. Each time, D.H.S. failed to take advantage of the many opportunities for rehabilitation offered to him by the juvenile justice system.

As an adult, D.H.S. has been charged with sexual assault, aggravated assault, robbery, terroristic threats, criminal restraint and possession of a weapon for an unlawful purpose. His first involvement as an adult for a sexually violent crime occurred in 1987, when he and an accomplice sexually assaulted a thirty-four-year-old woman inside an elevator. The victim was vaginally penetrated by these two men and forced to perform fellatio. She was also struck in the head with a beer bottle, robbed of twenty dollars and told that if she screamed she would be shot. While out on bail for this crime, D.H.S. and two other men committed a strong-armed robbery of a gasoline station.

In 1989, two weeks after his release for these crimes, D.H.S. committed his second sexual assault as an adult. D.H.S. and two other men abducted the victim at gun point as she was walking on a pubic street. She was robbed, vaginally penetrated and forced to perform fellatio. He was sentenced to a term of twenty years, with ten years of parole ineligibility, and found to be a compulsive and repetitive sexual offender. Despite this finding, however, he did not serve any part of his sentence at the Adult Diagnostic and Treatment Center (ADTC). (footnote omitted).

While an inmate, D.H.S. amassed thirty-four disciplinary infractions. He also has a chronic and protracted substance abuse problem that began when he smoked his first marijuana cigarette at age nine, and continued through his adult years with alcohol abuse and illicit drug use. He has admitted to deviant sexual fantasies, including arousal when thinking of past rapes. His sexual dysfunctions are both violent and compulsive.

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. "[T]he State must prove that 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." In re Commitment of W.Z., 173 N.J. 109, 132 (2002). The court must address "his or her present serious difficulty with control over dangerous sexual behavior[,]" and the State must establish that it is highly likely that the individual will reoffend by clear and convincing evidence. Id. at 131-33; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-10 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

The State's case consisted of the unrebutted testimony of Dr. Stanley Kern, a psychiatrist, Dr. Eleni Marcantonis, a psychologist, and Dr. Raymond Terranova, an unlicensed psychologist. Dr. Terranova testified as to his thirteen notes recording his observations of D.H.S. in the process group for the period August 2003 to December 2004. The exhibits admitted into evidence included Dr. Kern's January 10, 2005 report, the Treatment Progress Review Committee (TPRC) report, the Special Treatment Unit (STU) progress notes and the multidisciplinary treatment team report. The court also permitted the experts to reference in their testimony the records admitted in D.H.S.' first hearing. The court concluded that, although the records are hearsay, they are the type of records that are properly relied upon by psychologists and psychiatrists performing sex offender evaluations. The records consisted of judgments of conviction, presentence reports, a Department of Corrections Adult Diagnostic and Treatment Center (ADTC) presentence evaluation, the transcript of D.H.S.' plea, the risk assessment from Riverfront State Prison, and the psychological evaluation from Riverfront State Prison.

Dr. Kern testified that he arrived at his own diagnostic conclusions by reviewing records concerning D.H.S.' criminal background, diagnostic impressions from professionals who evaluated or examined D.H.S., and from his own interview and evaluation of D.H.S. on November 4, 2004. Likewise Dr. Marcantonis reviewed the available records in D.H.S' file, the description of the offenses, data accumulated by other professionals, including that of the TRPC, which evaluates a resident's progress in treatment, as well as her interview with D.H.S. in arriving at her own opinions concerning D.H.S.

The court in rendering its decision reviewed the evidence submitted in the initial case, including: D.H.S.' past history of sexual violence, the prior testimony of Dr. Kern, the presentence report containing D.H.S.' criminal record, the presentence evaluation at ADTC, the judgment of conviction, and a report by Dorothy Ward, a clinical psychologist, which recites her interview with D.H.S. in which he admitted the early rape of his cousin, the two other rapes and other criminal sexual acts for which he was never caught. In that interview, D.H.S. stated "I'm afraid I'll do it again." He admitted that after he raped the last victim he thought about the rape and three days later he had a wet dream about the victim. The judge also considered the testimony of Dr. Kern, Dr. Marcantonis and Dr. Terranova at this hearing. Judge Freedman framed the issue before him as "whether or not the likelihood [of D.H.S.] to commit acts of sexual violence have been mitigated by the dynamic factor of the treatment effect. . . . Has the treatment effect . . . been sufficient to reduce his dangerousness below the level of highly likely? The testimony here is that it has not."

The court determined that D.H.S. has progressed to the point of almost being in the high level of Phase Two of treatment, but as testified to by Dr. Marcantonis, D.H.S. has "deficiencies with regard to understanding and grasping the concepts involved in the cycle and relapse prevention, which caused the treatment team [to recommend] he remain in Phase Two." Dr. Marcantonis opined that relapse prevention is really the core of sex offender treatment. Part of relapse prevention is understanding the assault cycle. This understanding allows the person to realize what his or her precursors and triggers are and whether they are caused by an external or internal stimulus. D.H.S.' ability to only marginally grasp what a cycle is, and his inability to display remorse and empathy are what limit his recovery. Dr. Marcantonis concluded that the treatment to date has not been sufficient to reduce D.H.S.' dangerousness below the level of "highly likely" to re-offend.

D.H.S.' latest clinical psychiatric assessment, dated November 8, 2004 concludes that D.H.S. is new to treatment being only in its early stages. It also noted that D.H.S.' "remorse has not been prominent and evidence of genuine emotional empathy has been minimal."

Dr. Kern's diagnosis of D.H.S. is paraphilia NOS, based upon the sexual assaults of 1987 and 1989. Dr. Kern also diagnosed D.H.S. with poly-substance dependence and anti-social personality disorder, exhibited in a pervasive pattern of disregard for the rights of others verified by his arrest and conviction record. The doctor noted that D.H.S. is in Phase Two of treatment and, although he actively participates and is making progress in group, no signs of remorse have been prominent nor has any evidence of genuine emotional empathy. He is only marginally motivated to engage in treatment. D.H.S. is unable to discuss his deviant sexual arousal and his discharge plan is poorly thought out. Dr. Kern also opined that D.H.S. is "highly likely" to re-offend.

The judge concluded:

I think it's - there's no question that the record supports the opinion that he suffers from the mental abnormality in the form of a paraphilia NOS. That he also suffers from a personality disorder, . . . with antisocial traits at the very least.

These two in combination, the paraphilia provides the arousal, and the personality disorder facilitates the commission of the crime through its various symptoms, which are lack of regard for others, lack of empathy, feeling of entitlement and so on.

I think that these - the conditions clearly predispose [DHS] from engaging in both nonsexual and sexual violence. His record shows that. I think they clearly affect his volitional, emotional, and cognitive, all three of those areas. And that if released he would have a serious difficulty in controlling both his nonsexual criminal behavior and his sexual violent behavior. As the record shows they seem to be combined with one another. And when you take into account the nature of what [DHS] "tends to do," quote, unquote, as the record discloses, and you take the high propensity that he has as well, I think you come away with an -- inescapably with the view that he -- the opinion that he does have serious difficulty controlling his sexual behavior, . . . .

We are satisfied that the judge properly permitted the State's expert witnesses to utilize the record of D.H.S.' sexual crimes, the STU treatment reports, the TPRC report and the multi-disciplinary report in arriving at their own independent diagnosis and opinions. See In re Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004). In A.X.D. we stated:

In significant aspects, the 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 A.X.D.'s statements or refusals to discuss certain issues. A.X.D.'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.]

In A.X.D. we further recognized that the trial judge was entitled to consider the records in the course of weighing the credibility of the testifying experts. Ibid.

In determining whether sufficient evidence was presented to support the continued commitment of D.H.S., our scope of review is "extremely narrow," and we must defer to the trial court's determination unless the record "reveals a clear abuse of discretion." In re Commitment of J.P., 339 N.J. Super. 443, 459 (App. Div. 2001); see also In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003).

 
We are satisfied that the State proved by clear and convincing evidence that D.H.S. is a violent sexual predator who suffers from a present mental condition that creates a strong likelihood of future sexually violent behavior. See W.Z., supra, 173 N.J. at 127. We are convinced from our review of the entire record that Judge Freedman's findings are amply supported by substantial credible evidence. Accordingly, we affirm D.H.S.' continued commitment.

Affirmed.

By agreement of the parties, the appeal was argued without briefs. We set forth the issues raised by appellant based on the arguments orally presented.

(continued)

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10

A-4337-04T2

RECORD IMPOUNDED

October 25, 2005