IN THE MATTER CIVIL COMMITMENT OF K.J.W.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. A-3953-03T2

A-3640-04T2

IN THE MATTER OF THE

CIVIL COMMITMENT OF

K.J.W. SVP-359-04

________________________________________________________________

 

Argued June 5, 2006 - Decided July 18, 2006

Before Judges Holston, Jr. and Gilroy.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. SVP-359-04.

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

Patrick DeAlmeida, Assistant Attorney General argued the cause for respondent State of New Jersey (Zulima V. Farber, Attorney General, attorney; Mr. DeAlmeida, of counsel; Lisa Marie Albano, Deputy Attorney General, on the brief).

PER CURIAM

In this consolidated appeal, K.J.W. appeals from judgments dated March 18, 2004 and March 7, 2005, ordering his involuntary civil commitment to the Special Treatment Unit (STU), as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. The March 7, 2005 order established a review hearing for February 13, 2006. We affirm both judgments.

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 by clear and convincing evidence that it is highly likely that the committee will reoffend. Id. at 132-33; see also In re Civil Commitment of J.H.M., 367 N.J. Super. 599, 608-09 (App. Div. 2003), certif. denied, 179 N.J. 312 (2004).

On June 30, 1993, K.J.W., after having been waived from juvenile to adult court, admitted by way of guilty plea to all counts of Bergen County Indictment No. S-1407-92-01 that on May 20, 1992, at the age of fifteen, he committed aggravated sexual assault while armed, attempted aggravated sexual assault while armed, armed robbery, armed burglary and aggravated assault on a police officer. On November 12, 1993, K.J.W. was evaluated pursuant to N.J.S.A. 2C:47-1 and found not to be a repetitive and compulsive sex offender. K.J.W. was sentenced on June 22, 1995, as an adult to fifteen years in prison, which he served at the Youth Correctional Facility at Yardville.

The predicate offenses occurred on May 20, 1992. After burglarizing a twenty-four year old woman's apartment earlier that day, K.J.W. returned at 2:30 a.m. and dragged the woman out of bed by the hair and into the living room. With a knife to her throat, he forced the woman on all fours and attempted to anally and then vaginally rape her. Because he was not fully erect, K.J.W. forced the woman to perform fellatio and then vaginally raped her. He threatened that if she called the police, he would "hurt her bad" and then left. He returned fifteen minutes later, again dragged her by the hair out of her bedroom, threatened her with a knife and demanded jewelry and cash.

During the police investigation, a friend of K.J.W. told police that K.J.W. admitted to raping and robbing the woman. However, K.J.W.'s presentence investigation report indicated he told the interviewing probation officer, "I don't remember, I told the judge what my lawyer told me to say, I wasn't paying attention."

Prior to sentencing and during K.J.W.'s interview at the Adult Diagnostic and Treatment Center (ADTC), K.J.W. presented himself as lacking empathy, exhibiting poor impulse control and insight, and as attributing his numerous juvenile arrests to "boredom." He denied memory of the sexual assaults to which he pled guilty, claiming, "I don't want to remember it." The ADTC evaluation concluded:

Available information suggests that the present offense was an impulsive act of antisocial violence, with no evidence of compulsive sexual urges. Overall clinical impression is of a guarded and paranoid young man, who may be experiencing and manifesting the early symptoms of a severe paranoid disorder and possible psychosis. Assault potential should be considered extremely high.

While incarcerated in North Jersey State Prison, K.J.W. committed numerous institutional infractions, including two infractions of a sexual nature by exposing himself and masturbating in front of a female correctional officer. On October 1, 2000, K.J.W. called out to a female correctional officer, pulled his pants down and masturbated in front of her while saying, "come get this, it's all yours, I want to give it to you hard, you know you want it." After an administrative hearing, K.J.W. was found guilty of making a sexual proposal or threat to the officer. On November 6, 2000, K.J.W. exposed himself and masturbated while in the shower, in front of a female correctional officer. According to the officer, "he slid down [the shower wall] until his body was in full view of the lower glass panel of the shower door." Pursuant to a second administrative hearing, he was found guilty of indecent exposure. He received disciplinary sanctions in both cases.

K.J.W. was scheduled to be released from prison on February 18, 2004. Prior to his release, the State filed a petition seeking his civil commitment pursuant to the SVPA. The State's petition was supported by the certifications of two psychiatrists, both of whom concluded that K.J.W. had a diagnosed mental condition that resulted in serious difficulty controlling his sexually violent behavior and that, as a result, he was likely to engage in further acts of sexual violence if not confined for care and treatment. On February 20, 2004, the court found probable cause to believe that K.J.W. was a SVP and ordered him remanded to the STU pending a hearing on the need for his continued commitment.

K.J.W.'s initial hearing to determine whether he met the requirements of the SVPA was held on March 17-18, 2004. The State presented two expert witnesses, psychiatrist Michael R. McAllister, D.O., and psychologist Robert S. Carlson, Psy.D. K.J.W. presented one expert witness, psychiatrist Lawrence A. Siegel, M.D.

Prior to this hearing, K.J.W. moved to bar the State from using the actuarial Static-99 risk assessment instrument in its case, on the procedural ground that K.J.W. was a juvenile at the time he committed the predicate offenses and the Static-99 is not applicable to juvenile offenders. K.J.W. also moved for a jury trial, and requested that the State be held to a "beyond a reasonable doubt" standard of proof. The motions were denied by the court. Finally, K.J.W. objected to several of the State's exhibits on the ground that they contained inadmissible hearsay. The court acknowledged that they did contain hearsay, but did not exclude the documents because they were business records and were the type of records on which experts in psychiatry and psychology rely in forming their own independent opinions.

After the testimony of Drs. McAllister, Carlson and Siegel at the March 2004 hearing, Judge Perretti found that K.J.W. was a SVP pursuant to the SVPA. The judge found that the statutory requirements for commitment were met determining that K.J.W. has little or no control over his sex offending behavior, and that it was highly likely that he will re-offend if he is released.

The judge based her decision principally on the diagnosis of anti-social personality disorder (APD), which was supported by all of the experts who testified. K.J.W., because of his APD, has serious difficulty controlling his sexual acts and presents a great risk to the public. The judge found that K.J.W.'s rape behavior, evidenced by his guilty plea is part of his anti-social repertoire. The judge, therefore, concluded that it is "highly likely that he will sexually re-offend if not retained here for further care and treatment."

Dr. McAllister opined that K.J.W. suffers from a mental abnormality or personality disorder that affects his ability to control his sexually harmful conduct as required by N.J.S.A. 30:4-27.26. See W.Z., supra, 173 N.J. at 127. Dr. McAllister made a conditional diagnosis of paraphilia NOS, which he asserted was probable for non-consent, based on the history of K.J.W.'s sexual offenses. Dr. McAllister determined that K.J.W. exhibited a sexual perversion for unwanted, non-consensual sex in a severely coercive setting (K.J.W.'s institutional "exposure" offenses) and in what he described as "deviant arousal," evidenced by K.J.W.'s persistence in committing the predicate offenses. Dr. McAllister, therefore, concluded that all of the offenses were committed for sexual pleasure.

Dr. McAllister, Dr. Cohen and Dr. Siegel all diagnosed an anti-social personality disorder in the nature of an impulse control disorder, which all the experts agreed had psychopathic features. The diagnosis was corroborated by their interviews with K.J.W. in which he offered "incredible" explanations of the predicate crimes (that the victim solicited sexual acts from him) and the institutional offenses (that correctional officers made up the offenses because they felt he was unsatisfactorily disciplined for other non-sexual institutional infractions). Dr. McAllister opined that the APD alone predisposes K.J.W. to commit sexually violent offenses and to have serious difficulty controlling his sexual acts, creating a great risk to the public.

Dr. Carlson, though unable to diagnose a paraphilia, concluded that the three sex offenses are part of K.J.W.'s repertoire of anti-social behavior, which predisposes him to commit sexual acts and cause him difficulty in controlling his sexual propensities. Dr. Carlson was concerned with K.J.W.'s persistence in committing the predicate offenses in his effort to commit the sexual acts, indicating K.J.W. was seeking sexual satisfaction.

Dr. Siegel opined that K.J.W. suffered from a conduct disorder evidenced by his consistent violation of social rules, including fights and offenses involving the use of weapons while in prison. He also concluded that his conduct disorder was consistent with psychopathy.

The State must also prove by clear and convincing evidence that K.J.W. is likely to engage in future acts of sexually violent behavior, which is defined in N.J.S.A. 30:4-27.26 as "the propensity of a person to commit acts of sexual violence . . . of such a degree as to pose a threat to the health and safety of others." See W.Z., supra, 173 N.J. at 130 (a person's likelihood to commit sexually violent acts relates to the necessary lack of control determination). The judge found that K.J.W.'s history of sexual offenses while incarcerated as indicative of a propensity to commit acts of sexual violence. The evidence of sexual violence was particularly demonstrated by K.J.W.'s invitation to engage in sexual acts directed at an unwilling female correction's officer while masturbating. These acts, according to Dr. McAllister, were indicative of a predisposition to commit sexually violent acts based on deviant sexual arousal, anti-social personality, and psychopathic traits. That combination, Dr. McAllister opined, demonstrates serious difficulty controlling his sexually violent behavior and "great risk" to "reoffend." Dr. McAllister said that his opinion was strengthened because as of the March 17, 2004 hearing, "K.J.W. has no interventions, which would decrease his risk to sexually reoffend."

Judge Perretti, on March 18, 2004, entered a judgment confining K.J.W. to the STU for one year, determining that the State had proven by clear and convincing evidence that K.J.W. was a SVP in need of commitment.

At the one-year review hearing, on March 7, 2005, Dr. Jason Cohen, a psychiatrist, testified for the State, and Dr. Douglas Martinez, a psychologist, testified for K.J.W. In arriving at her decision that the State had proven by clear and convincing evidence that K.J.W. continues as a SVP and that he is highly likely to reoffend unless confined to the STU, the judge relied upon the testimony of Dr. Cohen.

Dr. Cohen diagnosed K.J.W. with a paraphilia NOS based on a common thread of victim non-consent existing in the predicate offense and the two institutional offenses. Dr. Cohen's diagnoses was based on what he described as recurrent and intense fantasies, urges and/or behavior involving arousal to non-consenting persons, which are acted upon and last for at least six months. Dr. Cohen's diagnoses were based on the predicate offenses, a really violent rape over a prolonged period of time involving multiple sexual acts despite pleadings on the part of the victim and his remaining undeterred until he achieved sexual satisfaction. The two masturbating acts toward female corrections' officers, one involving verbal aggression toward her, fell under the same category of sexual arousal involving non-consenting persons. The sexual aggression constitutes part of a pattern of K.J.W.'s pathology. Dr. Cohen's diagnoses were corroborated by K.J.W.'s STU treatment notes of his masturbatory fantasies identified as attractions to women in power or uniform and "sneaky" or exciting images of having intercourse in public places.

Additionally, Dr. Cohen diagnosed anti-social personality disorder, which he described as a pervasive pattern of disregard for, and violation of, the rights of others. Dr. Cohen referenced K.J.W.'s juvenile arrest and adjudication record exhibiting offenses of violence toward people, as well as sixteen institutional infractions, some including weapons offenses, breaking of rules, including the two sexual offenses for which he was adjudicated and sanctioned within the prison system. Dr. Cohen asserted the violence component in K.J.W.'s personality disorder and his disregard for the rights of others increased the risk substantially that K.J.W. will reoffend. Dr. Cohen stated:

If a person, as I believe is the case with [K.J.W.], is not that concerned about other people, what he does to them, how they're harmed by his actions, and this is in fact part of his personality, it is much more likely that he will continue to harm people in the future while he goes through life and - and thus he's much more likely to continue to reoffend in - sexually as well as non-sexually.

Dr. Cohen testified that K.J.W.'s treatment progress was slow and limited, but he was not refusing treatment altogether. He would engage in treatment, however, not in the full disclosure part of treatment. Dr. Cohen opined that K.J.W. had failed, during his one year in treatment at the STU, to address his offense cycle and relapse prevention because he is still in denial about his crimes and disciplinary offenses.

K.J.W. presents the following arguments for our consideration:

POINT I

K.J.W. HAS BOTH A FEDERAL AND STATE CONSTITUTIONAL RIGHT TO A JURY TRIAL IN A SEXUALLY VIOLENT PREDATOR HEARING TO PROTECT AGAINST IMPROPER INFRINGEMENT OF PERSONAL LIBERTY.

POINT II

THE COURT ERRED IN CONSIDERING AS SUBSTANTIVE EVIDENCE THE HEARSAY CONTAINED IN THE PROFFERED EXHIBITS AND THE TESTIMONY OF THE EXPERT WITNESS.

POINT III

THE COMMITMENT COURT ERRED IN RELYING IN PART ON EXPERT OPINIONS NOT IN EVIDENCE AND NOT SUBJECT TO CROSS-EXAMINATION TO CONCLUDE THAT K.J.W. WAS A SEXUALLY VIOLENT PREDATOR THEREBY DENYING K.J.W. HIS RIGHT TO CONFRONT THE WITNESSES AGAINST HIM.

POINT IV

CONSTITUTIONAL DUE PROCESS REQUIRES THAT THE GROUNDS FOR COMMITMENT AS A SEXUALLY VIOLENT PREDATOR BE PROVEN BEYOND A REASONABLE DOUBT.

POINT V

THE STATE FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT K.J.W. IS SUBJECT TO CIVIL COMMITMENT UNDER THE SVPA.

I

Defendant contends that he was improperly denied his constitutional right to a jury trial, contending that because the SVPA is silent as to a committee's right to a jury trial, that his denial violated Art. I, 9 of the New Jersey Constitution, as well as both federal and state case law.

This court, in J.H.M., supra, stated:

For a committee to have a right to a trial by jury, "it must arise under a statute or our State Constitution." Insurance Co. of N. Am. v. Anthony Amadei Sand & Gravel, Inc., 162 N.J. 168, 175 (1999). Article 1, paragraph 9 of the New Jersey Constitution specifically provides: "The Legislature may authorize the trial of the issue of mental incompetency without a jury." It also provides that "[t]he right of trial by jury shall remain inviolate," preserving the right to a jury trial only for those cases where this right existed at the time of the adoption of the State Constitutions in 1776, 1844, or 1947, or where the right was created with the enactment of the State Constitution. Amadei Sand & Gravel, 162 N.J. at 175-76 (quoting N.J. Const. art. I, 9). The New Jersey Constitution of 1844 was interpreted to preclude a right to a trial by jury in a commitment hearing, see Stizza v. Essex County Juvenile and Domestic Relations Court, 132 N.J.L. 406, 408-09 (E. & A.1945), and no such right was created by the current New Jersey Constitution of 1947. See Amadei Sand & Gravel, 162 N.J. at 175-76.

The New Jersey rule is consistent with that of other jurisdictions. See, e.g., Poole v. Goodno, 335 F.3d 705, 709 (8th Cir. 2003) (Minn. Law); State ex rel. Pearson v. Probate Court, 205 Minn. 545, 287 N.W. 297, 303 (1939), aff'd, 309 U.S. 270, 60 S. Ct. 523, 84 L. Ed. 744 (1940); In re Moulton, 96 N.H. 370, 77 A.2d 26, 28 (1950); State v. Dixon, 238 Or. 121, 393 P.2d 204, 206 (1964). We conclude that there is no right to a jury trial under state law.

[J.H.M., supra, 367 N.J. Super. at 606-07.]

Thus, the law is well established that there is no right to jury trial in SVPA commitment hearings.

II

K.J.W. contends the court erred in considering, as substantive evidence, the hearsay contained in the proffered exhibits and in the testimony of the expert witnesses. We disagree.

"As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion." Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). An appellate court should not upset the decision of the trial court unless "the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." State v. Brown, 170 N.J. 138, 147 (2001)(internal citations and quotations omitted).

Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is not admissible unless the rules of evidence or other law permits it. N.J.R.E. 802.

K.J.W. asserts that Judge Perretti, in her decision, accepted the proffered hearsay contained in the State's exhibits as factual proof of the matters asserted therein and based her decision thereon. At the initial hearing, K.J.W. objected to the admission of the following: the adult presentence report, a presentence evaluation from the ADTC, a February 4, 2004 psychological evaluation referring K.J.W. to the State for consideration of SVPA commitment, and two Department of Corrections (DOC) disciplinary reports.

Regarding K.J.W.'s predicate offenses, he was charged with two counts of aggravated sexual assault and one count of attempted aggravated sexual assault. He contends that while the State's experts at his review hearings based their diagnoses of paraphilia NOS primarily on the victim's allegation that K.J.W. attempted vaginal penetration at one point and succeeded a few minutes later, all while threatening her with a knife, the allegation was neither admitted by him when he pled guilty to the crimes nor was it supported by competent evidence. Thus, K.J.W. maintains that his guilty plea did not include admissions to facts on which the experts later relied to base their opinions. Accordingly, he argues no sexual motive for his predicate offenses was ever established. K.J.W. also argues that it was error for the experts to testify the exposure incidents while he was in prison indicated a sexual motive based on the information contained in the DOC incident reports. K.J.W. contends that a remand is, therefore, necessary so that the expert testimony and Judge Perretti's opinion are based on facts either admitted by K.J.W. or proven beyond a reasonable doubt by a jury.

At his sentencing for the predicate offenses, a great deal of detail was provided in the official version of the events surrounding the offenses. In her March 18, 2004 decision, Judge Perretti noted that at that sentencing hearing the sentencing judge stated, "All right, Mr. [W.]. You have the right to make any statement you care to in mitigation of [your] sentence. And you have a right to have Mrs. Morolla, your attorney, speak for you. Do you understand that?" K.J.W. replied, "Yes." "Do you want to go first, or do you want her to go first?" K.J.W. answered, "Her to go first." Then Ms. Morella stated, "Judge, we have received and reviewed the pre-sentencing report. In fact, I read it to Mr. [W.], along with all of the other relevant documents. We have no additions, corrections or deletions." Later, the judge said to K.J.W., "Mr. [W.], what do you want to tell me before I sentence you?" He responded, "I've nothing to say."

In J.H.M., supra, we commented on the use of hearsay by expert witnesses in commitment proceedings under the SVPA. We stated:

While out-of-court statements used to prove the truth of the matter asserted are inadmissible hearsay, see N.J.R.E. 802, an expert who substantially relies on hearsay evidence for his or her opinion may testify at trial as long as the hearsay information "was of a type 'reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.'" N.J.R.E. 703; see, Biunno, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 703 (Gann 2002) (citing Corcoran v. Sears Roebuck and Co., 312 N.J. Super. 117, 134-36 (App. Div. 1998)).

N.J.R.E. 703 specifically provides that facts or data "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject . . . need not be admissible in evidence." "Hearsay statements upon which an expert relies are ordinarily admissible provided that they are of a type reasonably relied upon by experts in the field." State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002)). "However, hearsay is not admissible substantively as establishing the truth of the statement." Ibid. A psychiatrist is permitted to testify about a defendant's prior criminal history in order to offer an opinion about a defendant's mental condition. State v. Eatman, 340 N.J. Super. 295, 302 (App. Div. 2001).

. . . .

"An expert is permitted to rely on hearsay information in forming his opinion concerning the defendant's mental state." Eatman, 340 N.J. Super. at 302. Unfortunately, W.Z., the seminal case in New Jersey dealing with civil commitment under the SVPA, does not offer any direct guidance with respect to this specific evidentiary issue. Nonetheless, W.Z. does stress the importance of an expert's evaluation of a defendant's mental condition for purposes of civil commitment under the SVPA such that a mental expert should be permitted to rely on hearsay information. See W.Z., 173 N.J. at 127 (stating that SVPA requires evidence of past sexually violent behavior and a present mental condition to determine if the individual needs to be incapacitated in order to prevent the individual from reoffending.)

[J.H.M., supra, 367 N.J. Super. at 612-13.]

In her decision at the one-year review hearing, Judge Perretti stated:

On a review hearing it's necessary for the State to establish by clear and convincing proof that [K.J.W.] continues to be a sexually violent predator and that all of the criteria of the statute have been met.

I will not go into any details about the offense for which [K.J.W.] was convicted except to indicate that [the State's] exhibit 1 from the first hearing establishes two convictions for two counts of first degree aggravated sex assault while armed, a count of attempted aggravated sex assault while armed and armed robbery and armed burglary and an aggravated assault on a police officer. [K.J.W.] was convicted of all of these offenses and there is no doubt whatever that all of these offenses have indeed been committed and all of the essential elements of all of these offenses have indeed been established.

Judge Moses, at the time that she sentences, stated at page 19 of the sentencing transcript . . . this is of course the Judge who heard the factual basis. She said in her sentencing statement what the details of the crime were. She found that [K.J.W.] had been guilty of raping a woman while holding a knife to her throat. She said that, "The risk that this defendant will commit another offense is not a risk, it is a sure thing." She pointed out that [K.J.W.] had a long record . . . [.] "He has a history of burglary, breaking into people's homes for five years prior to this offense."

. . . .

Although he had entered a guilty plea, when he went down to Avenel and was examined by Dr. McNeil (phonetic) he claimed that he could not remember what happened. It's noteworthy that he did not deny the happening of the incident, he claimed he could not remember it. Dr. McNeil in his report says, "Following extensive questioning and confrontation, [K.J.W.] ultimately said that 'I don't want to remember it!' No other information regarding this crime was elicited."

. . . .

He told the probation officer who prepared the pre-sentence report . . . , "I don't remember. I told the Judge what my lawyer told me to say, I wasn't paying attention."

. . . .

In addition to the conviction there were two charges that were established while [K.J.W.] was in custody at the - in the prison system, both of a sexual nature. . . . He denies both of these charges just as he now denies the criminal charge.

The expert here, Dr. Cohen, who testified for the State properly considered these charges. It would have been improper for him to have disregarded these charges. The documentary support is of the nature usually looked to by people in his position and it is reasonable that this be done. The documents that I've seen in support of the charges are reliable.

[K.J.W.] did have a hearing on these charges, he asserted by way of a defense to the offense charged that involved the shower that . . . the complainant, the female corrections officer, was not in a position from which she could see him. This statement alone would indicate that there was some knowledge of an offense. How did he know where he was? But he did say . . . that she can't see into the shower from her booth. There was reliable basis for Dr. Cohen to consider.

In addition, [K.J.W.] has told different stories as to why this occurred. He has told the story that the whole thing was trumped up because a male corrections officer had solicited him for sex and he refused and then these two charges were simply falsely put on him.

On another occasion . . . he said that the second charge had been trumped up because he wasn't given a long enough disciplinary sentence for the first charge, nothing about the solicitation for sex.

So I've concluded that these are reliable and the doctor was certainly within his province to consider them as he made his evaluation of [K.J.W.]

When K.J.W. raised his timely hearsay objections to the testimony of Dr. Cohen regarding the disciplinary incidents while K.J.W. was incarcerated, Judge Perretti responded,

Yes, of course it's hearsay and the Court understands that this is material referred to by the witness here as he explained previously as background. I can only consider for the truth of the contents of the statement but as it bears upon this witness's opinion, the accuracy and persuasiveness of his opinion. I also must consider in doing this the reliability of the source that was relied upon.

When confronted by Dr. Cohen about the two prison incidents, K.J.W. simply said, "it didn't happen, no part of it happened." In arriving at his diagnosis of K.J.W., Dr. Cohen stated:

Well, I came up with a diagnosis based on his sexual offending history as well as the whole rest of his history and his current status. All right? So it's taking into account all of that. I diagnosed him on Axis I with paraphilia not otherwise specified, NOS, and in his case it's a non-consent sub-type.

We are satisfied that the judge did not consider the hearsay evidence in its substantive capacity, but rather for the limited purpose of determining what the experts relied upon in order to form their conclusions. Therefore, the judge's evidentiary rulings do not constitute an abuse of discretion and are not a valid ground for reversal.

III

K.J.W. next argues that Judge Perretti did not make the required findings at either hearing when admitting or citing to prior forensic evaluations, including the ADTC presentence psychological evaluation performed prior to his temporary civil commitment. K.J.W. contends that these documents contain complex psychological opinions from experts who were not available for cross-examination at either hearing.

K.J.W. specifically finds error in the two required clinical certifications used to temporarily commit K.J.W. before his first commitment hearing. Dr. McAllister wrote one of them and he was clearly available for cross-examination, however, Dr. Neal Brandoff, who wrote the second certification, was not present at either hearing to be subject to cross-examination.

N.J.R.E. 808 provides:

Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.

[(emphasis added).]

In addition, N.J.R.E. 703 provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

[(emphasis added).]

In In re Civil Commitment of A.X.D., 370 N.J. Super. 198, 201-02 (App. Div. 2004), we held that STU records were admissible as business records under N.J.R.E. 803(c)(6) and as statements of a party under N.J.R.E. 803(b)(1). In A.X.D., the Committee's main contention was that the trial court admitted and relied upon STU treatment reports consisting of multiple levels of inadmissible hearsay documents that contained complex diagnoses, in violation of N.J.R.E. 808. Id. at 201. A.X.D. also objected because the testifying experts relied on those documents and "no proof was presented at the hearings to substantiate the facts on which the testifying experts based their opinions (for example, the predicate offenses they assume A.X.D. committed)." Ibid. "Since A.X.D.'s refusal to discuss or admit the facts of the underlying offenses was the prime basis for his continued commitment, his counsel contends that the State should have been required to prove the facts of the offenses at the hearing." Ibid.

This court, in A.X.D., found "no merit in any of these contentions. A.X.D. was convicted or pled guilty to all of the underlying offenses, which included sexually assaulting three boys, ages nine, ten and twelve years old." Ibid. We also concluded that "[t]he testifying experts and the trial judge properly considered the facts surrounding these offenses." Ibid.

Further in A.X.D., we found:

no error in the manner in which the trial judge and the testifying experts used the STU treatment reports. The experts testified that these documents were the types of information that they would ordinarily rely upon to assist them in reaching a diagnosis. See, N.J.R.E. 703; J.H.M., supra, 367 N.J. Super. at 612. Three of the four experts also interviewed A.X.D.; they did not base their opinions solely on the records. The trial judge was entitled to consider the records in the course of weighing the credibility of the testifying experts. State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002), aff'd, 177 N.J. 229 (2003).

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). A.X.D. did not testify at the review hearings and did not offer any other evidence to place the factual accuracy of the reports in question.

[A.X.D., supra, 370 N.J. Super. at 201-02.]

We determined that the court used the reports as background to evaluate the opinions of the experts who testified that they had used those reports in reaching their own diagnoses of A.X.D. Id. at 202. We noted that

[w]hile the trial judge might have made this clearer by acknowledging the applicability of N.J.R.E. 808 and explicitly stating that she was not considering any included diagnoses for their truth, her failure to do so was not harmful error. This was a bench trial, not a jury trial; hence, the possible prejudicial impact of complex diagnoses included in medical records was of less concern. J.H.M., supra, 367 N.J. Super. at 613.

[A.X.D., supra, 370 N.J. Super. at 202-03.]

In this case, similar to the facts in A.X.D., Judge Perretti properly utilized the expert reports and treatment documents, considering the reports and testimony as background in evaluating the opinions of the testifying experts. As in A.X.D., this trial was a bench trial. That fact inherently limits the possible prejudicial impact of complex diagnoses found in the medical records and leads us to the conclusion that no reversible error occurred.

IV

K.J.W. next contends that Judge Perretti should have been required to apply the "beyond a reasonable doubt" standard of proof when deciding whether the State had established the requisite elements for commitment pursuant to the SVPA. This court held in J.H.M., that the proper standard to be applied in SVPA cases is the "clear and convincing evidence" standard. J.H.M., supra, 367 N.J. Super. at 607.

In J.H.M., we concluded:

New Jersey's use of the "clear and convincing evidence" standard in committing a sex offender under the SVPA is constitutionally established and sound. The United States Supreme Court has addressed the issue and stated: 'We have concluded that the reasonable-doubt standard is inappropriate in civil commitment proceedings because, given the uncertainties of psychiatric diagnosis, it may impose a burden the state cannot meet and thereby erect an unreasonable barrier to needed medical treatment. Similarly, we conclude that use of the term "unequivocal" is not constitutionally required, although the states are free to use that standard. To meet due process demands, the standard has to inform the fact-finder that the proof must be greater than the preponderance-of-the-evidence standard applicable to other categories of civil cases. [Addington v. Texas, 441 U.S. 418, 432-33, 99 S. Ct. 1804, 1812-13, 60 L. Ed. 2d 323, 335 (1979).']

"'[C]ivil commitment,' from a constitutional perspective, nonetheless remains civil." Kansas v. Hendricks, 521 U.S. 346, 380, 117 S. Ct. 2072, 2091, 138 L. Ed. 2d 501 (1997) (Breyer, J., dissenting) (citing Allen v. Illinois, 478 U.S. 364, 369-70, 106 S. Ct. 2988, 92 L. Ed. 2d 296 (1986)). New Jersey's treatment of sex offenders is no different.

[J.H.M., supra, 367 N.J. Super. at 607-08.]

V

Lastly, K.J.W. argues that the State failed to satisfy its burden of proof by clear and convincing evidence in both of the commitment hearings. 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)). See also, In re Civil Commitment of V.A., 357 N.J. Super. 55, 63 (App. Div.), certif. denied, 177 N.J. 490 (2003). "The appropriate inquiry is to canvass the . . . expert testimony in the record and determine whether the lower court's findings were clearly erroneous." In re D.C., 146 N.J. 31, 58-59 (1996).

Applying this standard, we are fully satisfied that Judge Perretti's findings, both at the initial hearing on March 17-18, 2004, and at the review hearing of March 7, 2005, are amply supported by the record. To be found an SVP, a person must suffer from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not otherwise constrained. N.J.S.A. 30:4-27.26. Under the SVPA, a mental abnormality is "a mental condition that affects a person's emotional, cognitive or volitional capacity in a manner that predisposes that person to commit acts of sexual violence." Ibid. A mental abnormality or personality disorder must "affect an individual's ability to control his or her sexually harmful conduct." W.Z., supra, 173 N.J. at 127. A finding of a total lack of control is not necessary. Id. at 126-27. Instead, a showing of an impaired ability to control sexually dangerous behavior as has been demonstrated here will suffice to prove a mental abnormality. Id. at 127. Our thorough review of the entire record of the two proceedings in this consolidated appeal supports Judge Perretti's determinations to continue K.J.W.'s commitment under the SVPA. There was clearly sufficient evidence in the record of both proceedings to support the judge's findings and conclusions. See Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Affirmed.

 

It is unclear whether a review hearing was held on February 13, 2006, and if held, whether the court ordered further commitment. Neither counsel for the State nor K.J.W. were aware of whether a hearing had been held at the time of oral argument.

(continued)

(continued)

29

A-3953-03T2

RECORD IMPOUNDED

July 18, 2006