IN THE MATTER OF THE CIVIL COMMITMENT OF C.L.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0697-06T20697-06T2

IN THE MATTER OF THE CIVIL

COMMITMENT OF C.L. SVP 417-05.

________________________________________

 

Submitted December 16, 2008 - Decided

Before Judges Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-417-05.

Ronald K. Chen, Public Advocate, attorney for appellant C.L. (Alison Perrone, Designated Counsel, on the brief).

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

PER CURIAM

C.L. appeals from the order of May 19, 2006, committing him to the State of New Jersey Special Treatment Unit (STU), pursuant to the New Jersey Sexually Violent Predator Act (SVPA), N.J.S.A. 30:4-27.24 to -27.38. He contends that his commitment should be reversed because the State's expert witnesses and the trial court improperly relied on hearsay evidence, unproven allegations, and the opinions of non-testifying experts in reaching their conclusions. We conclude that the decision did not rely on impermissible hearsay evidence and affirm.

I

The SVPA provides for the civil commitment of a sexually violent predator, N.J.S.A. 30:4-27.32, defined as a person who has committed a sexually violent offense (the predicate offense) and who has "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. In the commitment proceedings, the State must prove "by clear and convincing evidence that the individual poses 'a threat to the health and safety of others if he or she were found . . . to have serious difficulty in controlling his or her harmful behavior such that it is highly likely that the individual will not control his or her sexually violent behavior and will reoffend.'" In re Civil Commitment of J.M.B., __ N.J. __, __ (2009) (slip op. at 4-5) (quoting In re Commitment of W.Z., 173 N.J. 109, 130 (2002)) (alteration in original).

C.L.'s predicate offense was a conviction for aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a), due to an incident that occurred on November 15, 2002, when C.L. was nineteen years old. The victim of this assault was an acquaintance who was giving him a ride in her car. When providing the factual basis for this guilty plea, C.L. admitted that he grabbed the victim around the neck in a choke hold, straddled her, and touched her breasts for his sexual satisfaction. The victim managed to escape the attack when the car began to roll. The presentence report indicates that the victim thought C.L. was going to kill her and that C.L. was smiling and looked happy during the attack. C.L. was found to be a repetitive and compulsive sex offender and under N.J.S.A. 2C:47-3, was sentenced to a term of four years at the Adult Diagnostic and Treatment Center (ADTC) for this offense. C.L. has told mental health professionals that he had intended to kill the victim.

C.L.'s only other charge involving criminal sexual conduct involved a juvenile offense. He was charged with criminal sexual conduct for fondling his cousin over a number of years while she was sleeping. C.L. also cut his cousin's underpants in order to view her vagina while she was sleeping, and some of her underwear was found in his room which he used while masturbating. By the time the cousin reported this conduct to the authorities, she was sixteen and C.L. was seventeen years old. The charge was downgraded to a simple assault. C.L. was adjudicated a juvenile delinquent and sentenced to one year probation. Approximately one month after his probation ended, C.L. committed the predicate offense.

C.L. has a history of psychiatric and behavioral disorders. He has received inpatient psychiatric treatment on three occasions. When a teenager, he would cut his wrists and upper arms. He has on occasion reported hearing voices. He has reported having rape fantasies, and indicated that he was the victim of sexual abuse when a minor. As a juvenile, he received inpatient substance abuse treatment.

At the commitment hearing held pursuant to N.J.S.A. 30:27-28(g) and -27.29, the State presented the testimony of two mental health professionals, Dr. Michael McAllister, a psychiatrist, and Dr. Brian Friedman, a psychologist. Both experts reviewed substantial records, including records from the court, ADTC, STU, and various expert reports, and interviewed C.L. Dr. Friedman also administered tests to C.L.

Dr. McAllister concluded that C.L. suffers from a sexual perversion that includes paraphilia (coercive sexual contact), frotteurism (surreptitiously touching others for sexual gratification), and fetishism, and the Doctor noted the need to exclude sexual sadism. Although he found C.L. to be "extremely charming [and] very, very disarming," Dr. McAllister nonetheless found that C.L. had a personality disorder with borderline and antisocial features. He explained that C.L.'s history of substance abuse, when combined with his personality disorder, could lead to a deterioration that would result in worsening impulse control and a greater risk of yielding to sexual urges. Dr. McAllister concluded that C.L.'s risk to re-offend was "extremely high."

Dr. Friedman diagnosed C.L. with paraphilia, fetishism, a borderline personality disorder, and an antisocial personality disorder. The Doctor indicated that alcohol abuse and sexual sadism needed to be ruled out. Due to C.L.'s deviant arousal pattern and severe personality disorder, Dr. Friedman opined that the risk that C.L. would commit future sexual offenses was high.

On appeal, C.L. raises the following issues:

POINT ONE

THE STATE FAILED TO PROVE BY COMPETENT, CLEAR AND CONVINCING EVIDENCE THAT C.L. WAS SUBJECT TO SVP COMMITMENT BECAUSE THE STATE RELIED UPON EXCESSIVE AMOUNTS OF HEARSAY AND UNPROVEN ALLEGATIONS.

POINT TWO

THE COURT ERRED IN RELYING ON THE OPINIONS OF DRS. MCALLISTER AND FRIEDMAN BECAUSE THESE OPINIONS WERE BASED IN PART ON THE OPINIONS OF NON-TESTIFYING EXPERTS. (Not Raised Below).

POINT THREE

THE EVALUATIONS PREPARED BY NON-TESTIFYING EXPERTS CONSTITUTE HEARSAY, DO NOT COMPLY WITH N.J.R.E. 703, AND SHOULD NOT HAVE BEEN ADMITTED AS EXHIBITS AT TRIAL. (Not Raised Below).

When reviewing a trial court's evidentiary rulings, we apply an abuse of discretion standard. In re Civil Commitment of G.G.N., 372 N.J. Super. 42, 55 (App. Div. 2004); State v. Conklin, 54 N.J. 540, 545 (1969).

II

We will first address C.L.'s contention that the State's experts and the court improperly relied on certain factual allegations of bad conduct that were unproven and based on hearsay statements only. Specifically, C.L. contends that the State's expert witnesses and the court relied on unproven allegations that C.L. had intended to rape and kill his victim in the predicate offense and that C.L.'s fondling of his cousin occurred over a period of four or five years and included ritualistic behavior such as the cutting of her underpants.

Indeed, the trial court and both experts took these facts into account when reaching their conclusions. Although SVPA commitment cannot be based on unproven allegations of misconduct, In re Civil Commitment of A.E.F., 377 N.J. Super. 473, 490 (App. Div.), certif. denied, 185 N.J. 393 (2005), sufficient evidence is set forth in the record to support a conclusion that these events took place.

Dr. Friedman testified that in his interview with C.L., at one point C.L. denied that he intended to kill his victim, but at another point acknowledged that the thought may have gone through his mind. He also told the Doctor that he was cruising to find a victim to rape that day. Further, Dr. Friedman testified that when he specifically asked C.L. about the cutting of his cousin's underpants, C.L. admitted doing so in order to view her vagina. These statements by C.L. to Dr. Friedman are admissible as party admissions. See N.J.R.E. 803(b)(1) (allowing admission of a party's own statement).

In 2004, Dr. Donna LoBiondo, a psychologist, evaluated C.L. for eligibility for sentencing under the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10. She states in her report that in response to her question about the predicate offense, C.L. said that when he got into the car, he had already had thoughts of sexually assaulting someone. C.L. also admitted to her that he had touched his cousin while she slept and that he had cut her underpants. The ADTC report by Dr. Anna Rossi, D.O., who evaluated C.L. in 2005 to determine if he met the criteria for SVPA commitment, states that C.L. told her he had touched his cousin in her sleep for years. Regarding the predicate offense, C.L. told Dr. Rossi that when he got into the car, he had already decided to rape and kill the victim. According to treatment notes at the ADTC, C.L. stated that if the victim had not run away, he would have strangled her to death. When Dr. McAllister asked C.L. about these remarks, C.L. said he had made them sarcastically. The reports of Drs. LoBiondo and Rossi were admitted into evidence, and they were reviewed by the State's expert witnesses.

The statements by C.L. recorded in his treatment records and his statements to Drs. LoBiondo and Rossi recorded in their reports constitute competent evidence strongly supporting the State's position. Those statements are admissible as party admissions under N.J.R.E. 803(b)(1) and recorded in business records under N.J.R.E. 803(c)(6). See In re Civil Commitment of A.X.D, 370 N.J. Super. 198, 202 (App. Div. 2004) (stating that treatment records were admissible as business records under N.J.R.E. 803(c)(6), that A.X.D.'s statements reflected in those records were admissible as party statements under N.J.R.E. 803(b)(1), and that aspects of the expert reports were admissible under applicable hearsay exceptions under N.J.R.E. 805).

This material was properly relied upon by Drs. McAllister and Friedman under N.J.R.E. 703, which permits an expert to rely on information made known to him before the hearing provided it is "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. Indeed, these facts and data need not be admissible evidence. Ibid. However, we have acknowledged that in SVPA commitment proceedings, extensive reliance on hearsay may reach a tipping point where due process is violated because of the loss of the opportunity for effective cross-examination. In re Civil Commitment of G.G.N., supra, 372 N.J. Super. at 58. That tipping point is not reached here, where the hearsay statements at issue are ones C.L. made himself.

III

Defendant also contends that the State's experts, Drs. McAllister and Friedman, improperly relied on opinions of non-testifying experts set forth in the following reports: clinical certificates from Lawrence Siegel, M.D., and Anna Rossi, D.O., both dated December 19, 2005, supporting the State's petition for commitment; report of Dr. LoBiondo, dated February 13, 2004, evaluating C.L.'s eligibility for sentencing under the New Jersey Sex Offender Act, N.J.S.A. 2C:47-1 to -10; psychological sexual evaluation by Jeffrey B. Allen, Ph.D., dated September 13, 2002, prepared at the request of the juvenile court; and ADTC psychiatric termination reports by Dr. Rossi, dated September 12, 2005, and September 15, 2005, evaluating whether C.L. meets the criteria under the SVPA.

These reports contained historical data that the writers obtained from other records, accounts of the writers' observations and conversations with C.L., and the writers' diagnoses of C.L. C.L. maintains that the State's experts, Drs. McAllister and Friedman, improperly based their opinions in part on the diagnoses of these non-testifying experts, and that, as a result, the trial court erred in relying on the opinions of the State's experts.

The reports of these non-testifying experts contained opinions about C.L.'s mental state that would be considered complex diagnoses. It would have been error for the trial court to consider the reports for the truth of those diagnoses. See In re Civil Commitment of A.X.D., supra, 370 N.J. Super. at 202. However, the trial judge did not do so. When admitting the various reports into evidence, the trial court expressly excluded any complex diagnoses contained in those records. In reaching his decision, the trial judge relied on the diagnoses of the State's testifying witnesses whom he found credible, and not the diagnoses in these reports.

C.L. contends that the State's testifying witnesses, Drs. McAllister and Friedman, improperly relied on the diagnoses contained in these expert reports when reaching their conclusions. As noted earlier, an expert witness may rely on facts and data not admissible into evidence if they are of the type "reasonably relied upon by experts in the particular field." N.J.R.E. 703. For example, a medical expert may base his opinion on "the findings of technicians and other physicians, as long as the expert would normally rely on that data in the course of medical practice." Biunno, Current N.J. Rules of Evidence, comment 8 on N.J.R.E. 703 (2009).

However, where the expert is relying on a medical opinion set forth in a forensic evaluation rather than the opinion of a treating doctor, the parameters of N.J.R.E. 703 are not met. In re Civil Commitment of E.S.T., 371 N.J. Super. 562, 573 (App. Div. 2004). Further, if a testifying doctor is merely a "conduit" for out of court opinions, the opponent is deprived of an effective way to cross-examine that adverse opinion. Id. at 573-74. With respect to the certifications that support the commitment petition, we have expressly stated that if an expert is going to rely on those certifications, then the experts who prepared the certifications must also testify. Id. at 575. "It does not comport with fundamental fairness to have the opinions of the non-testifying experts bootstrapped into evidence through the testimony of the testifying experts without an opportunity for cross-examination of the underlying opinions." Ibid.

After a careful review of the record, we do not find that Drs. McAllister and Friedman improperly relied on the complex diagnoses contained in the forensic reports provided to them. Dr. McAllister testified that the review of all of this material was standard in the field for his work. He made clear that he reviewed the other expert reports for the data and clinical inferences that can be derived from that data. While he did review the diagnoses in those reports, he testified that "[t]hose diagnoses [were] reviewed them[selves] as to whether they [were] supported by the information in there or not, then [I] arrived at my own diagnoses independently." Dr. McAllister's testimony focused on the factual material that could be gleaned from this record and not the diagnoses of other experts. While Dr. Friedman did not expressly state that he did not rely on the diagnoses in the other expert reports, however, when explaining to the court his evaluation of C.L., he mentioned only factual data and did not discuss the diagnoses of other doctors. Accordingly, we see no bootstrapping of the opinions of non-testifying experts into this record.

 
Finding no fatal evidentiary errors, we affirm.

During this time period, C.L. was living with the cousin's family.

(continued)

(continued)

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A-0697-06T2

RECORD IMPOUNDED

April 6, 2009